By Jack Queen

Law360 (May 12, 2020, 8:25 PM EDT) -- A D.C. federal court has ordered a government psychiatric hospital ravaged by the coronavirus to increase its efforts to contain the disease, extending a temporary restraining order and imposing new monitoring measures after the death toll rose to 14.

U.S. District Judge Randolph D. Moss said Monday that Saint Elizabeths Hospital is still coming up short of U.S. Centers for Disease Control and Prevention guidelines, ordering the facility to restrict staff movements and to broaden monitoring efforts, on the advice of a court-appointed expert panel.

The ruling extends a prior order compelling the hospital to buckle down on a range of alleged shortcomings, including inadequate testing, social distancing and isolation of exposed residents. The hospital has made progress, but the death toll has nonetheless tripled since the last order.

"The court concludes that the hospital's unexplained failure to abide by the CDC guidance in this respect is not based on the exercise of professional judgment," Judge Moss said, referring to mixing of staff between hospital units.

Under the order, now extended to May 22, the hospital must keep staff assigned to a single unit throughout the day, including during overtime shifts. Staff must also be included in the so-called point prevalence surveys and mass testing designed to track exposure to the virus.

Judge Moss cited the recommendations of an expert panel including two infectious disease experts and the former CEO of Saint Elizabeths, which investigated the situation at the hospital and concluded staff members were the most likely source of the disease's continued spread.

The order's extension is the latest turn in a rapidly evolving case that began last October as a class action alleging "inhumane" conditions at the public psychiatric facility, and has since evolved into a court-mediated scramble to halt the spread of COVID-19.

The effort at Saint Elizabeths has been complicated by the high number of the remaining 200 patients who are involuntarily confined and can't be easily released or relocated. The hospital must also juggle its pandemic response with continued psychiatric needs of patients, many of whom are severely disabled.

Kaitlin Banner of the Washington Lawyers' Committee for Civil Rights and Urban Affairs, an attorney for the plaintiffs, told Law360 on Tuesday that Saint Elizabeths' handling of the crisis tracks with emergency response failures alleged in the original suit, which claimed the facility cut the water for more than a month after finding legionella bacteria in its supply.

"These are both public health crises in which the hospital utterly failed to respond appropriately," she said. "We believe there's a common root here where they do not have a plan in place or the ability to implement a plan to protect the health and safety of patients."

A representative for the Washington, D.C., attorney general's office, which represents Saint Elizabeths, did not immediately respond to a request for comment Tuesday.

Judge Moss has been sympathetic to the "extraordinary challenges" of slowing the virus at the hospital and praised staff for their cooperation. But the dire circumstances still merit court intervention, he said, noting the mortality rate at Saint Elizabeths is "magnitudes higher" than the surrounding Washington, D.C., area.

In his temporary restraining order on April 25, Judge Moss found the plaintiffs in the case had offered compelling evidence that Saint Elizabeths COVID-19 mitigation efforts "substantially depart from accepted professional standards."

He ordered the hospital to immediately quarantine patients exposed to COVID-19, conduct clinical evaluations before releasing those patients from isolation and implement a CDC-recommended two-test release protocol.

The order distilled a rapid back-and-forth between attorneys for the patients and the hospital, who in a series of telephone conferences and conferral meetings sparred over the adequacy of the hospital's mitigation efforts and which standards should apply to the facility.

The plaintiffs in the case — patients Enzo Costa, Vinita Smith and William Dunbar — alleged in their April 16 amended complaint that Saint Elizabeths had botched its response to the pandemic by continuing to admit new patients, failing to enforce social distancing and conducting inadequate testing, among other things. 

"Patients at Saint Elizabeths Hospital are at a heightened risk of contracting, and are, in fact, dying from COVID-19 because of defendants' failure to follow professional guidance and appropriately plan and manage the facility during this global pandemic," the amended complaint said.

The patients are represented by Arthur B. Spitzer, Scott Michelman and Michael Perloff of the American Civil Liberties Union Foundation of the District of Columbia, Kaitlin Banner, Margaret Hart, Hannah Lieberman, Jonathan Smith and Maria Morris of the Washington Lawyers' Committee for Civil Rights and Urban Affairs and John A. Freedman, Tirzah S. Lollar and Emily Reeder-Ricchetti of Arnold & Porter.

The defendants are represented by Micah Ian Bluming and Honey C. Morton of the District of Columbia attorney general's office.

The case is Costa et al. v. Bazron et al., case number 1:19-cv-03185, in the U.S. District Court for the District of Columbia.

--Additional reporting by Y. Peter Kang. Editing by Stephen Berg.

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