Law360 (January 4, 2021, 7:46 PM EST) -- The operator of a Pittsburgh-area nursing home that suffered a major, deadly outbreak of COVID-19 claimed federal law and guidance from the Department of Health and Human Services gave it immunity from a lawsuit brought by more than a dozen residents and their survivors, according to a brief filed Monday.
Comprehensive Healthcare Management Services LLC, which runs the Brighton Rehabilitation and Wellness Center in Beaver County, Pennsylvania, said that the federal Public Readiness and Emergency Preparedness Act protected it from claims related to its use of — or alleged failure to use — testing, protective equipment and emergency plans, despite another judge in the district issuing a ruling that the immunity didn't apply.
"Plaintiffs cannot 'plead around' immunity simply by inserting the word 'failure.' If the decision not to provide certain care (even if true) is the decision, it is still protected under the PREP Act as a matter of law," CHM's brief supporting its motion to dismiss said. "The reasonableness of this discretionary authority is underscored by the fact that experts from the WHO, CDC, and other public and private organizations issue constantly evolving recommendations, guidance, and advice based on the science of the moment. In fact, expert advice concerning when to provide countermeasures and whether to 'use' covered countermeasures is often conflicted, and program planners must make the best decisions they can using the best available information."
Arguing that later updates from HHS clarified that liability didn't apply to an entity's use or non-use of corona countermeasures, CHM sought to dismiss the suit, brought in Pittsburgh federal court Oct. 21 on behalf of 15 current and former patients at the facility, 10 of whom had died.
The suit had claimed that more than 330 residents and staff at Brighton had contracted COVID-19, and it blamed CHM for understaffing, failing to provide enough protective equipment or taking other steps to prevent the disease's spread, and downplaying its severity.
The estate of a former housekeeper at the facility had made similar claims in July, and Senior U.S. District Judge Arthur J. Schwab had ruled Oct. 16 that the PREP Act didn't preempt claims for countermeasures CHM had allegedly failed to take.
But CHM argued Monday that conflicting information and shortages of equipment early in the pandemic meant it should still be immune from liability for choosing not to take the measures the plaintiffs said it should have.
"Some infectious disease experts initially recommended not wearing masks during the initial COVID-19 response because they wanted to ensure that the limited supply went to hospital ICU units and first responders. Testing shortages also resulted in limiting testing to certain patients who met strict criteria," the brief said. "The act is intended to protect those who must make the hard choices during an extreme shortage of supplies. Otherwise, providers could choose to close their doors to avoid the risk of going out of business due to liability."
The brief pointed to letters from HHS that affirmed nursing homes like Brighton were covered by the PREP Act, including an Oct. 23 letter that specifically rejected as "wrong" a 2014 Supreme Court of New York case, Casabianca v. Mt. Sinai Medical Center , that Judge Schwab had cited as support for his finding that the law didn't shield CHM from its alleged inaction. A "fourth amended declaration" to the PREP Act from HHS in December formalized those opinion letters and gave them the force of an official declaration from the agency, CHM said.
"Further, this amendment specifically states that PREP Act immunity can apply in circumstances of non-use of a covered countermeasure, when there is purposeful allocation or non-use is due to rationing of a scarce resource," the brief said.
CHM also argued that the case should be dismissed because the PREP Act offered "administrative remedies" in the form of an "emergency fund" for paying victims of injuries covered by the act, where appeals for cases of injury or death due to willful misconduct would have to go directly to the U.S. District Court for the District of Columbia.
The case had also improperly joined too many plaintiffs together, where each had vastly different circumstances and care, the facility claimed.
Robert Daley of Robert Peirce and Associates PC, representing the plaintiffs, said there was a motion to remand the case to the Beaver County Court of Common Pleas that he hoped would be granted on similar grounds as the housekeeper's case. He rejected CHM's arguments that the federal law applied to the facility's alleged failures, and noted that some of the problems with staffing and infection control in the complaint existed before the pandemic laid them bare.
"The guidance from HHS is just that — guidance, not the law," Daley told Law360 Monday. "Failures that predate the pandemic can't be covered by the PREP Act."
Counsel for CHM did not immediately respond to requests for comment.
CHM is represented by Andrew G. Kimball and Erica Kelly Curren of Gordon & Rees LLP.
The plaintiffs are represented by Robert F. Daley and Elizabeth Chiappetta of Robert Peirce & Associates PC, Peter D. Giglione of Massa Butler Giglione, and Kelly M. Tocci of McMillen Urick Tocci & Jones.
The case is Gill et al. v. Comprehensive Health Care Management Services LLC, case number 2:20-cv-01754, in the U.S. District Court for the Western District of Pennsylvania.
--Additional reporting by Y. Peter Kang. Editing by Adam LoBelia.
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