A judge writes while his gavel sits by his side
Credit: boonchai wedmakawand/Getty Images Plus

A California court’s decision to move forward with a wrongful death lawsuit against an employer that was brought by a relative of an employee is a worrisome turn in the COVID-19 liability debate and could have adverse ripple effects for long-term care providers in states that don’t have immunity laws, a legal expert warned. 

The original case involves a wrongful death lawsuit against See’s Candies by the family of Los Angeles resident Arturo Ek, who died of COVID-19 in April 2020, as Reuters first reported. Ek’s wife, Matilde, was an employee at See’s Candies and alleges she was infected with COVID-19 at work, which then led to her husband contracting and ultimately dying from the disease.

In a first-of-its-kind ruling in the nation, a California Court of Appeals has allowed the wrongful death suit to move forward. This has sparked widespread concern from businesses about the threat of “take-home” COVID-19 lawsuits from employees’ family and friends. 

“The ruling is concerning for businesses, including long-term care providers, in that it definitely expands the range of individuals that could potentially file a take-home COVID-19 lawsuit,” said Craig C. Conley, a shareholder with Memphis-based law firm Baker Donelson.  

“This is particularly concerning in states, such as California, that do not have immunity statutes or other protections in place for businesses such as long-term care providers,” Conley told McKnight’s Long-Term Care News on Tuesday.

Legal experts in recent weeks have warned that the number of nursing homes across the country facing COVID-19 negligent and wrongful death lawsuits has grown this year — with more threats coming.

Conley said while this specific ruling isn’t binding authority in other states beyond California, it can still be utilized as a persuasive authority in support of allowing similar cases to proceed elsewhere. 

“I suspect there will be a rise in the number of take-home COVID-19 lawsuits brought, given the court’s ruling — especially if there is another surge in COVID-19 cases,” he said. “The ruling allowing the lawsuit to proceed obviously broadens the potential exposure businesses have in relation to future litigation.” 

There is hope, Conley said, as providers and other businesses continue to watch this case. He said despite the court allowing the case to proceed, Ek’s representation will still have an uphill battle in order to prevail. 

“As suggested, a plaintiff will have to show that the business owed a duty to a family member or acquaintance,” Conley said. “Most importantly, a plaintiff will have to prove a link between the business and the case of COVID-19, which may be daunting unless that plaintiff has been isolated and not in contact with anyone other than the employee or a resident in the case of a long-term care provider.”