Illinois Assisted Living and COVID Immunity

Last Friday, the Illinois Supreme Court issued a ruling regarding whether healthcare providers (Assisted Living included) have immunity against negligence claims, COVID and non-COVID related. The decision is available here: James v. Geneva Nursing & Rehabilitation Center, LLC, 2024 IL 130042

The Illinois Supreme Court’s majority opinion stated that healthcare facilities in Illinois, which provided care during the COVID-19 disaster declaration, are exempt from any negligence claims that occurred in that period, regardless of their relation to the COVID-19 assistance provided to the state.

The case has similarities to a Virginia Assisted Living COVID litigation case that I wrote about in January of this year. Per the court filings, “It is alleged that Defendants were negligent in multiple respects: by failing to take all necessary precautions to prevent the spread of the virus to residents, supplying inadequate staff, and supplying inadequate care. In particular, the complaint alleges that Defendants held a New Year’s Eve celebration for residents on December 31, 2020 that did not comply with their COVID-19 protocol and the standard of care for similarly situated assisted living facilities.”

The applicable Virginia code that provides immunity to healthcare providers and was the reference relied upon by the defense. The Court, in its ruling on Defendant’s motion to dismiss, stated that Assisted Living Facilities are not healthcare providers as they are not licensed as nursing homes or hospitals, and they do not regularly employ licensed healthcare providers to “primarily” render healthcare services. Accordingly, the Defense motion to dismiss due to Virginia’s COVID liability was denied.  More including case details is available here: https://rhislop3.com/2024/01/04/covid-assisted-living-claim-in-virginia-potentially-precedential/

The decision by the Illinois court stemmed from wrongful death lawsuits filed against Bria Health Services by the families of five residents of the Bria of Geneva nursing home. The facility was accused by these families of “negligently and willfully” failing to control the spread of COVID-19, which led to the deaths of their loved ones.

The lawsuits alleged that residents contracted COVID-19 due to Bria’s failure to properly quarantine infected or symptomatic staff and residents, as well as its failure to implement effective hygiene and equipment maintenance procedures, including the provision of personal protective equipment. More on the Plaintiff case here: Will court allow plaintiffs to ‘Monday morning quarterback’ COVID immunity intentions? – McKnight’s Long-Term Care News

Bria argued that the governor’s (Pritzker) immunity order was broad and intended to cover any provider rendering assistance to the state at any time during the emergency period. Rendering assistance in this case means providing healthcare services in response to the COVID public health emergency. Pritzker’s order is available here: ExecutiveOrder-2020-19

The provider argued that it was “rendering assistance” to the state when the residents died, making the community immune from lawsuits for ordinary negligence. Bria said that it was obtaining and preserving PPE, training staff members on the effective and efficient use of PPE, continuing to accept admissions from acute care hospitals and taking steps to prevent, contain and treat the spread of COVID in the nursing home.

The Illinois Supreme Court decision was not unanimous. Via a dissenting opinion, “the narrow legal question presented in this appeal is whether healthcare facilities are immunized from negligent conduct that was entirely unrelated to the act of providing COVID assistance to the state. By answering yes, the majority bars recovery for any number of deserving plaintiffs throughout the state, for reasons that have nothing to do with the COVID disaster declaration.”

We are just beginning to see the flow of COVID litigation cases either directly related to allegations of care negligence or whereby COVID was an element present, such as in this case, despite the allegation of negligence not being directly tide of infection control. As more come forth, I’ll endeavor to keep readers posted. There are a number of COVID related litigation posts on the site.  Feel free to search using the keywords COVID and litigation.