Another COVID-19-related wrongful death lawsuit against a nursing home has been bounced back to state court after providers had sought to have it heard in federal court.
The U.S. Court of Appeals for the Ninth Circuit Court handed down that ruling Tuesday, rejecting the argument that nursing homes’ pandemic response and actions were covered under the federal Public Readiness and Emergency Preparedness, or PREP, Act.
Some legal experts believe that providers should still be well covered in state court, but that has yet to be determined.
Tuesday’s ruling involves a case brought by relatives of Ricardo Saldana who died from COVID-19 while staying at Glenhaven Healthcare in Glendale, CA. The family has argued that the facility failed to adequately protect Saldana from the COVID-19 virus, which ultimately led to his death.
Glenhaven sought to have the case removed to federal court, arguing that the federal government’s expansion of the PREP Act provides cover for decisions made by nursing home operators regarding COVID-19.
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.
A federal District Court rejected the argument and remanded it back to state court. The Ninth Circuit upheld the decision on Tuesday and said the provider failed to substantiate its claims that it acted under the federal government purview.
“All that Glenhaven has demonstrated is that it operated as a private entity subject to government regulations, and that during the COVID-19 pandemic it received additional regulations and recommendations from federal agencies. Thus, Glenhaven was not ‘acting under’ a federal officer or agency as contemplated by the federal officer removal statute,” the judges wrote.
Other providers around the country facing wrongful death suits also have attempted to use the PREP Act as a defense to shield them against legal liability during the public health crisis.
Despite the rejections by federal courts, some provider legal experts have argued that the PREP Act makes it clear that targeted immunity provisions in response to the public health emergency cover claims in both federal and state courts, and previous rulings remanding the cases back to state courts shouldn’t be too much cause for concern.
