Covid-19 suit against LA nursing home sent to state court

A Los Angeles nursing home will face a lawsuit in state court over a resident's COVID-19 death, a federal judge ruled.

U.S. District Judge Dale Fischer remanded the litigation to Los Angeles County Superior Court, finding there is no immunity from alleged violations of state law based on federal health care guidance on the virus.

"The court declines to find that Congress has completely occupied the field of actions or inactions related to COVID-19 spread and treatment to such a degree that all state law claims related to that topic are subject to removal," she wrote in Thursday's order.

Emma Martin sued Hollywood Premier Healthcare Center in July for allegedly causing the death of her husband by mishandling the virus, after which the defense transferred the case to the Central District. The nursing home claimed it was acting under the oversight of the federal government to contain the pandemic. Martin v. Serrano Post Acute, LLC, 20-cv-05937 (C.D. Cal., filed July 1, 2020).

The argument was based on the Department of Health and Human Services extending in March protections under the Public Readiness and Emergency Preparedness Act to provide liability immunity for activities related to medical countermeasures against COVID-19.

"Not only has Congress expressed a clear intent to provide immunity from civil liability for covered persons involved in the administration, use and distribution of covered countermeasures, but Congress further set up civil enforcement provisions with exclusive federal jurisdiction which provide a specific federal forum for actions arising from alleged "willful misconduct" and the rules for adjudicating such claims," wrote defense attorney William Wilson of Wilson Getty LLP, who did not respond to requests for comment.

Health care providers across the nation have employed the same strategy of removing lawsuits against them to federal court, according to plaintiffs' attorney Anne Murphy of Cotchett, Pitre & McCarthy LLP.

"They're ultimately claiming they have blanket immunity against claims occurring during the pandemic," she said.

But judges have largely rejected arguments that state law claims are preempted. "Complete preemption that confers federal question jurisdiction is very rare," Fischer wrote.

At least 16 lawsuits in Kansas, New Jersey and California federal courts against nursing homes over their handling of the virus have been returned to state courts.

Despite the unprecedented nature of the pandemic, Murphy said nothing distinguishes the case from other elder abuse cases against nursing homes she's handled. This one, like others, alleged that the facility cut corners on caring for their residents through chronic understaffing and by having ineffective protocols. These issues existed even before the occurrence of COVID-19, she said.

Hollywood Premier is now exclusively a nursing home for those with the virus. Seventy-two of 99 total residents became infected at one point, according to court filings.

Fischer agreed with plaintiffs' attorneys that the defense failed to tie claims they have immunity for countermeasures they took in response to the pandemic to allegations they negligently failed to take proper actions.

"In our case and what I understand from others, it's the failure of the nursing homes to use adequate PPE, have adequate infection control protocols and the failure to react when residents get COVID-19," Murphy said. "It's about the failure to act and the absence of care."

To the extent federal courts might have exclusive jurisdiction because of federal guidance, the judge found that the issue is irrelevant because plaintiffs' only argued state law violations.

"If defendants believe that some or all of plaintiffs' state law claims are barred by the PREP Act, the appropriate response is to file a demurrer in state court," she wrote. "If the state court dismisses the state law claims, plaintiffs could then decide if they wish to file claims under the PREP Act in the district court of the District of Columbia, the court with exclusive jurisdiction over such claims."