Legal experts are anxiously awaiting decisions in two separate COVID-related wrongful death lawsuits against nursing home providers that are expected to be handed down soon by federal judges.
The rulings could set off a wave of similar lawsuits in long-term care, and other industries. The courts are expected to determine whether providers were working under cover of the federal government during its COVID response and if an expanded federal emergency preparedness law passed during the pandemic shields providers from COVID-related.
The U.S. Court of Appeals for the Third Circuit, which heard oral arguments in June, is currently debating whether a lawsuit against two New Jersey providers should remain in federal court, according to an analysis by Law360.
The suit involves the 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.
The providers have been accused of causing patients’ COVID-19 deaths. They’ve argued, however, that they were just complying with federal regulations in response to the pandemic, according filings.
“These nursing homes were acting under and in assistance to the federal government in the manner in which it responded to the pandemic that swept through these nursing homes,” defense attorney Lann G. McIntryre said.
In a separate case, the U.S. Court of Appeals for the Ninth Circuit is also deciding whether a wrongful death case against a California provider should remain in federal court on the same grounds.
The suit involves Glenhaven Healthcare LLC, which is accused of not giving staff enough protective gear and causing patients to become infected with COVID-19 and, in some cases, die.
The provider has argued that the federal government’s expansion of the Public Readiness and Emergency Preparedness (PREP) Act provides cover for decisions made by nursing home operators regarding COVID-19.
Other providers around the country facing wrongful death suits have also used the PREP Act as a defense to shield them against legal liability during the public health crisis.
“The merits of Glenhaven’s claim that the PREP Act is a complete preemption statute must be addressed and once again compels the conclusion that federal question jurisdiction exists,” a brief filed by Glenhaven stated. “The PREP Act completely encompasses plaintiffs’ claims.”
The U.S. Court of Appeals for the Eighth Circuit will also soon hear oral arguments in a case against Tyson Foods. Workers in its Waterloo, IA, accused Tyson of lying and “knowingly risking their health during the early stages of the pandemic, resulting in more than 1,000 worker infections and at least five deaths,” according to the report.