Drew Graham, partner and leader of the Aging Services and Long-Term Care practices at the law firm of Hall Booth Smith
Drew Graham, partner and leader of the Aging Services and Long-Term Care practices at the law firm of Hall Booth Smith

A COVID-19-related wrongful death lawsuit against two New Jersey nursing homes must be decided in state court — and not in federal court as providers had sought, according to a ruling issued Wednesday by the U.S. Court of Appeals for the Third Circuit. 

But the decision shouldn’t be a huge cause for concern for other long-term care providers facing similar legal challenges in other states, according to one legal expert. 

“We are disappointed by the Third Circuit’s ruling,” Drew Graham, partner and leader of the aging services and long-term care practices at the law firm of Hall Booth Smith, said in a statement Wednesday. “However, we are confident that the state courts will uphold the law and provide our frontline workers who are working night and day to protect their patients from COVID-19 with immunity from suit and liability, as is provided under the [Public Readiness and Emergency Preparedness] PREP Act.”. 

The wrongful death lawsuit involves Andover Rehabilitation and Subacute Care I and II facilities in Andover, NJ, where 17 bodies were removed from a mortuary building outside of the building in April 2020. Residents’ families accused the providers of acting negligently in their handling of the pandemic and causing patients’ COVID-19 deaths.

In filings, the providers argued they were complying with federal regulations in response to the pandemic and their actions were covered by the PREP Act. The act provides immunity from liability under state and federal law to a “covered person” for losses related to the use of “countermeasures” during a declared public health emergency.

Andover sought to move the case to federal court, an effort dismissed in District Court and upheld by the Third Circuit this week. Graham told McKnight’s Long-Term Care News on Thursday the decision also means that providers now run the risk of more inconsistent application of immunity provisions if cases are left to state courts.

Though the case was sent back to state court, the ruling did include three “pretty substantial findings,” he explained. 

It made clear the Health and Human Services Department secretary controls the scope of immunity; the scope of the targeted immunity for the pandemic is very broad; and that covered persons using covered countermeasures enjoy immunity from all claims under federal or state law. 

“The PREP Act is clear — it is very clear actually — that the targeted immunity provisions that were part of the country’s response to this public health emergency cover claims in both state and federal courts.” Graham explained.

“It remains to be seen how these cases will be adjudicated, but I don’t necessarily think there is reason for concern, and we should continue to look at things on a case-by-case basis,” he added.