Garnice Robertson wants to answer for her mother's death from COVID-19 who was caught living in a Kansas nursing home that reportedly failed to prevent an outbreak of the disease. An unexpected legal hurdle gets in her way.
The nursing home states it has full legal immunity from lawsuits such as Robertson's arising out of COVID-19. It cites recent changes to a 2005 law by the former Trump administration that had been sought after by senior care.
The law known as the PREP law was originally intended to encourage the production of emergency vaccines during an epidemic by granting legal immunity to drug developers.
Riverbend Post-Acute Rehabilitation of Kansas City, Kansas, where Robertson's mother is said to have been infected, is one of at least 36 nursing and retirement homes that have listed the law as a defense.
Facilities in 14 states, where more than 650 residents died, have argued that they should be immune to tort deaths – an early sign of how the PREP law could be used by a range of companies to pursue lawsuits as a result of the pandemic. to ward off.
No judge has yet adopted the nursing home's view of the law, but those arguments and disputes over which court should hear the case – federal or state – have led to months of delays, preventing Robertson's attorneys from getting files and giving evidence. critical to her case, the lawyers said.
Robertson, whose lawsuit had been brought by Riverbend to federal court in Topeka, Kansas, said she was upset by the nursing home's use of the law.
"When I feel the way I feel, how do you think all these other people feel?" she said. "It just doesn't make sense."
Riverbend, which is affiliated with the listed Ensign Group Inc,. and her lawyers did not respond to a request for comment.
The Public Readiness and Emergency Preparedness (PREP) Act was originally intended to kick-start the US defense against a potential avian flu epidemic or bioterrorist attack.
It authorizes the Secretary of the Department of Health and Human Services (HHS) to protect against liability makers of & # 39; countermeasures during a public health emergency. such as diagnostic tests, protective equipment and vaccines such as those developed by Pfizer Inc., Germany's BioNTech and Moderna Inc.
The PREP Act does not apply in cases of serious injury or death caused by “willful misconduct”.
When the PREP Act shield applies, the injured party can instead seek compensation from a government fund, although most claims are denied.
Former HHS Secretary Alex Azar invoked the PREP law in March in response to the coronavirus pandemic, and since then, the agency has only released changes and guidelines on January 12 to expand the law's reach.
The bureau's guidance included criticism of statements made against defendants, including Riverbend.
"They have made the arguments for the defendants better than the existing defense attorneys," said Jonathan Steele, Robertson's attorney, of the HHS guidance. "It's unprecedented."
Some changes were sought by the type of facility operators now defending themselves against lawsuits.
In August, in response to a question from a lawyer at a lobbying firm, then-HHS general counsel Robert Charrow wrote that senior housing facilities would fall under the PREP law if they used approved products to combat the pandemic.
HHS also said the PREP law applies in recent months in situations where, while trying to comply with health regulations, an organization failed to take an action such as testing – which is a claim in most nursing home lawsuits.
LeadingAge, a group representing nonprofit nursing homes and other service providers, sought clarification in March when masks and other protective equipment were scarce.
LeadingAge, one of several aged care groups calling for more protection, declined to comment. The group does not represent Ensign.
HHS has said it wants to provide legal certainty to organizations that they will be immune from good faith mistakes in complying with health guidelines and to ensure a unified national response to the spread of COVID-19.
HHS did not respond to a request for comment about the agency's plans under a Biden administration.
Acting HHS Secretary Norris Cochran said in a letter to state governors on Friday that they could expect PREP Act statements to continue to support the fight against the pandemic.
More than 100,000 residents of nursing and retirement homes in the US have died from COVID-19. Some attorneys said that without any kind of immunity, disputes over a new airborne disease that could be spread by asymptomatic carriers could engulf the industry.
So far, seven federal judges have delivered preliminary rulings, all of whom sided with the plaintiffs and returned the cases to the state court, Reuters found.
Six of the rulings were made before HHS amended the PREP law in December to declare that for a consistent interpretation of the law, the cases should be heard by the federal court, which has been reformed by former President Donald Trump and seen as more favorable for companies.
Only a few of the rulings concerned the issue of the immunity of the PREP law, which nursing homes can still use as a defense in the state court.
Raising the PREP Act defense alone can complicate procedures in ways that can affect future cases, said Mike Duff, a professor at the University of Wyoming College of Law.
“Time is money and complexity is time and the more complex a case is, the less likely the wrongful death claimants will find attorneys to represent them,” he said.
Nursing homes have used that HHS directive to try to move cases from the state court, causing delays.
Vincent Martin's family sued a month after Martin died of COVID-19 in April from COVID-19 in the Hollywood Premier Healthcare Center state court in Los Angeles.
The nursing home, where at least 11 residents died, cited the PREP law to move the lawsuit to federal court.
However, the federal judge sided with the family and returned it to the state court.
In January, Hollywood, armed with new guidance from HHS, had the case referred back to federal court for a second time, where it is pending.
US District Court Judge Dale Fischer said Hollywood's attempt to take the case to federal court raises the possibility that the move was "a cynical, strategic way to suspend cases and make concessions".
Hollywood and other facilities are not unreasonably delaying the discovery, but are applying the law and HHS guidelines that make it clear that the cases belong in federal court, Kim Cruz, a lawyer for Hollywood, said in an email.
Robertson, whose case has been similarly removed in federal court, called Riverbend's legal tactics unfair and she is awaiting answers about her mother's concerns.
Her mother, Georgia Clardy, lived in Riverbend since 2017.
She was taken to a hospital in March for a fractured femur, and in her absence, Robertson said the coronavirus entered the Riverbend facility and spread.
The lawsuit alleges that Riverbend & # 39; s negligence included a lack of adequate staff, which allowed infected workers to enter the facility and fail to socialize.
Robertson said she would have taken her mother home from the hospital instead of returning her to Riverbend if the facility had told her there was an outbreak.
"Once I found out she had been diagnosed with COVID, no one wanted to talk about it anymore," said Robertson. "That was very disturbing to me."
The judge in Robertson's case has set the next hearing for February.
(Reporting by Tom Hals in Wilmington, Delaware; edited by Mike Collett-White and Noeleen Walder)
Top photo: A bed is made in a nursing home in Rockland, Massachusetts. About 2.5 million people live in long-term care facilities in the United States. (AP Photo / David Goldman)