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Law360 (April 28, 2020, 6:46 PM EDT) -- The Pennsylvania Department of Health has cut back on nursing home inspections during the COVID-19 pandemic, resulting in hundreds of nursing home residents being subjected to "unethical biomedical experimentation," a disabled nursing home resident and his daughter alleged in federal court Tuesday.
Jodi Gill filed the proposed class action on behalf of her 81-year-old father Glenn Oscar Gill, claiming that the Pennsylvania Department of Health failed to safeguard nursing home residents during the COVID-19 pandemic and failed to prevent a so-called study of the the drug hydroxychloroquine.
"Sadly, these seniors were sitting ducks for a study of a drug that has now been wholly discredited by competent medical investigations," said Robert L. Sachs Jr., of Shrager & Sachs, who is representing the Gills.
Hydroxychloroquine, which is commonly used for malaria treatment, made headlines when President Donald Trump touted it as a "game changer" in treating COVID-19. But the Food and Drug Administration says the drug is reported to have serious and life-threatening side effects when used to treat the disease.
Sachs said the biomedical experiments conducted in Gill's nursing home — involving giving residents hydroxychloroquine with a zinc tablet — violated "every national and international protocol on the ethical performance of medical experimentation."
"Instead of stepping up inspections to ensure that infection control practices were scrupulously enforced, they left seniors in nursing homes without proper social distancing, without adequate personal protective equipment, and without any plan to isolate those who tested positive for COVID-19," Sachs said.
Had the state continued to thoroughly inspect nursing homes during the pandemic, it is "unlikely that such egregious conduct could have occurred," Jodi Gill alleged in her complaint on behalf of her father.
The Pennsylvania Department of Health declined to comment on the pending litigation, but a spokesperson said the department "has provided guidance on survey activities during COVID-19, which is consistent and follows the guidance released by the Center for Medicare and Medicaid Services."
The spokesperson pointed Law360 to interim COVID-19 guidance released on March 31 for health care facilities and agencies licensed and certified by the state health department. The guidance states that infection control inspections would continue, as would inspections for "complaints and incidents that may place the health and safety of patients or residents at risk for serious injury, serious harm or death."
But Jodi Gill says her father should never have been experimented on by his nursing facility's staff and that the state should have protected him.
Gill says she received a call from her father's nursing home on April 10, during which a nurse called to ask her to sign a consent form allowing her father to take part in an experimental drug study testing a combination of hydroxychloroquine and zinc to prevent infection of COVID-19.
Gill says she "was coerced to sign the form because she was told that it would help her father and by not signing it, she would not be helping him."
Gill and hundreds of other residents at the facility took part in the unapproved biomedical research study, according to the suit.
By severely reducing inspections, the Pennsylvania Department of Health "has caused a direct, present, and credible threat to the health and well-being of the [long-term care facility] residents; and has caused death and injury," the Gills claim in their lawsuit.
The Gills allege that the state health department knew that at least one nursing home was experimenting on residents with "unproven, unauthorized medication in an attempt to see if it prevented them from contracting COVID-19," but the state failed to take action.
The Gills also allege that the state's policies and practices discriminated against the disabled by keeping disabled persons from using resources that could be allocated to nondisabled persons.
"These individuals represent the most fragile in our society and deserve protection, not exploitation," Jodi Gill says in her complaint.
The Gills claim the Pennsylvania Department of Health failed to comply with the Rehabilitation Act, the Americans with Disabilities Act, the Affordable Care Act, the Social Security Act, the Federal Nursing Home Reform Amendments, the Disease Prevention and Control Law and the Civil Rights Act.
They are seeking an injunction requiring the state to inspect the nursing homes, take steps to prevent the transmission of the virus within the facilities and to prevent nursing home residents from being experimented upon without consent.
The Gills are represented by Robert L. Sachs Jr. and Theresa M. Blanco of Shrager & Sachs, Peter D. Giglione of Massa Butler Giglione, Martin S. Kardon of Kanter Bernstein & Kardon PC, Robert F. Daley and D. Aaron Rihn of Robert Peirce & Associates PC.
Counsel information for the Pennsylvania Department of Health could not immediately be determined.
The case is Jodi Gill et al. v. Pennsylvania Department of Health, case number 2:20-cv-02038, in the U.S. District Court for the Eastern District of Pennsylvania.
--Editing by Nicole Bleier.
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