An Alabama nursing home hoping to fight off a wrongful death suit related to COVID-19 will have to wait longer for its day in court.
Lawyers for Knollwood Nursing Home, site of one of the state’s largest coronavirus outbreaks, argued that the civil case filed by the family of former rehab patient Edna Holman should be referred to federal court, citing the Public Readiness and Emergency Preparedness, or PREP, Act.
Attorneys hope the act will protect the facility from claims that Holman’s death was caused by the placement of a COVID-19 positive resident in her room without appropriate interventions.
Her family first filed suit in Mobile County Circuit Court. It’s unclear whether judges on the U.S. District Court for the Southern District of Alabama will keep the case as requested by attorneys for the nursing home. Across the nation, defense attorneys are being challenged with repeated changes of venue and arguments that the PREP Act may not apply in all scenarios.
Louisiana-based attorney Ric Poirier of Blue Williams LLC said in a webinar last week that a handful of cases from Kansas, Florida and New Jersey show the law remains unsettled.
In those cases, like the one in Alabama, plaintiffs brought cases under state actions, such as failure to meet infection control requirements. In them, federal judges quickly bounced cases back to the states, ruling that they “do not read the PREP Act to preempt, that is supersede, these state law courses of action.”
Providers have viewed the PREP Act as a sort of liability shield that will protect them from most COVID-19 related claims, aside from those in which victims can show willful negligence or misconduct. Poirier said defense attorneys will argue that the act was intended to reduce local variation in legal responsibility during what is a global event.
It will take appeals court rulings — or a longer-shot solution, a Congressional amendment of the PREP Act — to determine if the act can deliver on that intent, Poirier said.
“If that is, in fact, what it’s ultimately determined to be, then these cases are going to start dropping by the wayside,” he said.
For families like Holman’s, that would leave little room for recourse. They allege Knollwood should have done more to “prevent or mitigate” the risk of COVID-19, and also named a therapy director and business office manager in their suit. Holman contracted COVID-19 in May and died June 24.