Helena Apotaker was very sad about her mother, who died of COVID-19 when the virus swept through a medical facility in Beverly Grove when she heard the news that infuriated her: a new resident was admitted to the facility during the pandemic.
He “didn’t isolate him, didn’t check and didn’t let him pass through this building,” Apotaker said in a trembling voice. “It was their own disaster.”
Apotaker and other bereaved relatives decided to sue, alleging that Silverado Senior Living put residents at risk by allowing a person to fly from New York and arrive at a Los Angeles facility without isolation or testing before testing positive for virus.
As grieving relatives like Apothaker blamed facilities for fatal failures amid COVID-19, Silverado and other companies have argued they have immunity from such claims under federal law applied during the pandemic.
They pointed to the Community Preparedness and Emergency Preparedness Act, which provides protection from lawsuits related to “countermeasures” during a public health emergency. The law was initiated by a federal statement and previously applied to Ebola, Zika and other threats.
COVID-19 “countermeasures” can include drugs, products and devices. used to diagnose, prevent, or treat the virus and its transmission.
Much of the controversy in court cases revolves around the alleged rejection of the use of preventive tools such as neglect of wearing masks, as well as whether they are subject to federal law. In some cases, there is debate as to whether the deficiencies were associated with such measures at all.
So far, the bulk of legal disputes have been about which courts – federal or state – should hear them. Adam R. Pulver, an attorney for the Public Citizen Litigation Group, has counted more than 100 cases nationwide related to allegations of COVID-19 disruptions in healthcare facilities and the PREP Act, which led to some kind of court ruling.
Attorney Mark E. Reagan who advises industry groups including California Assn. medical institutions, called it the “first round” in the decisive battle for medical institutions. At the start of the pandemic, nursing homes caring for vulnerable people “said that only people with symptoms can transmit the disease. They had limited supplies of personal protective equipment, ”Reagan said.
Because of these and other restrictions, he said, “they had little ability to respond during the worst periods of the pandemic.” In addition, many insurers have excluded COVID-19 claims from their coverage, Reagan said, meaning that high legal costs can pose a “significant risk” to institutions if they are not granted immunity.
Tony Chicothel, California’s senior attorney for Nursing Home Reform Advocates, argued that the pandemic “has exacerbated long-standing, unresolved problems in health care.”
“There was so much preventable – and I emphasize the term ‘preventable’ – suffering during the pandemic caused by these long-standing problems,” he said. Chicotel argued that civil suits are the best way to ensure accountability for the quality of healthcare in healthcare facilities.
“If they feel like it’s not there to hold them accountable, I’m very scared,” he said.
In September, a federal judge ruled that the charges against Silverado did not involve “covert countermeasures” and therefore did not fall within the scope of the PREP Act. The judge returned the case to the state court.
But Silverado, whose lawyers declined to comment, quickly appealed. In a broader case for immunity, the company pointed to yet another case in California – one that is being closely watched in the ongoing controversy over how far federal law goes to immunize nursing homes and other care facilities in lawsuits for deaths from COVID-19. …
After Gilbert Garcia died of COVID, his sons sued Sunrise Villa Bradford, alleging that the Orange County institution violated the rules by allowing outsiders, including a barber who cut his hair on an 89-year-old man, and that employees took care of them. father without proper protective equipment such as gloves.
Sunrise Senior Living Management, which operates the facility, said it has taken measures to prevent infections, including temperature checks and requiring staff masks. More broadly, he said the PREP should prompt the court to dismiss the claim.
Court documents claim Garcias’ allegations relate to the “management” of protective gear, while federal officials said “administration” could include “inaction or inaction,” especially in the event of a shortage or conflicting guidelines.
Garcias’ lawyers later said the argument would “expand the language of the PREP Act to the extreme.” They argued that the law “only applies to positive drug and device use. This does not apply to their non-use. “
In February, a federal judge agreed with the company, ruling it was immune from Garcias’s suit. Garcias appealed this decision, arguing that if he were allowed to remain in effect, it will “disenfranchise thousands of COVID victims.” Lawyer Matt Borden, representing the Garcia family, called this “the only case in the 9th arrondissement where a judge actually supported this theory.”
Sunrise’s lawyers declined to comment. In their legal documents, they argued that Congress wanted to ensure that the national response to a public health emergency was “not held back and held back by fears of over-responsibility.”
Without it, “healthcare providers who are in good faith trying to combat the spread of COVID-19 by making difficult decisions in the face of ever-changing and incomplete information will be prosecuted and liable in multiple locations across the country with conflicting results and potentially unfulfilled losses.” , – wrote Sunrise lawyers.
The defendants added that Congress provided another remedy – a victim compensation fund – and still allows “willful misconduct” cases to be brought before the federal commission. Critics, including California nursing home reform advocates and the AARP, called the fund a “meager alternative to jury trials,” limiting potential damages.
They argued that in this process, “nursing homes are not responsible, while taxpayers pay the bill for their negligent care.”
Reagan argued that going to the federal fund ensures that businesses are not exposed to financial risk. If they “end up having to file for Chapter 11 protection, there won’t be much compensation for the plaintiffs,” he said.
In a decision contested by Garcias, US District Court Judge James W. Selna cited an advisory opinion issued by President Trump’s General Counsel for Health and Human Services. He said the PREP Law can protect objects when “prioritization or targeted allocation” led to a conscious decision not to use countermeasures.
HHS also stated that “there may be situations where not using covered countermeasures” could be covered by the law, for example, if there was only one dose of vaccine and the provider chose to give it to a more vulnerable person.
California nursing home reform advocates and other groups have called on HHS Secretary Xavier Becerra to backtrack on these claims, arguing the law is not intended to protect inaction.
The decision of the 9th Circuit Court of Appeals in the Garcia case obliged the lower courts in the western United States. But Garcia’s case isn’t the only case before the 9th arrondissement that revolves around federal law and death from COVID-19.
In October, the court heard arguments in two such cases, including a lawsuit filed by relatives of Ricardo Saldana, who accused the Glendale facility of not being able to wear masks. before an elderly man died of COVID. Glenhaven Healthcare, whose attorneys declined to be interviewed, argued that the company has immunity from claims of deficiencies in protective equipment under the PREP Act.
“To encourage and reward the fight against the pandemic, nursing facilities and other health care providers are granted immunity from lawsuits and accountability for their actions in responding to public health emergencies,” the statement said.
Saldan’s attorney Scott Glovski called this “a completely contrived argument.” The lawsuit is based on the fact that Glenhaven “is not taking any positive action to protect people,” Glovski said. “However, they argue that they should be immunized in accordance with the PREP Act, which is designed for individuals and organizations using countermeasures to protect people.”
Pulver, who also represents Saldanov, argued that such tactics – and the ensuing legal battles – delayed justice for grieving families. When the 3rd Circuit Court of Appeals recently ruled that the New Jersey case concerning the death of COVID-19 in a nursing home fell to a state court, it noted that almost every federal district court that tried such cases had done the same.
Apotaker recalls his mother, Katherine, as a woman ahead of her time, a college graduate who ran her own flooring business and opposed the Vietnam War and abortion rights. According to her, her mother taught her that justice must be fair, which is why she wants companies like Silverado to be held accountable.
“How long will it take,” Apotaker asked, “until someone says that what they did was wrong?”