Gavel

A federal judge has decided that a coronavirus-based lawsuit can move forward against an Illinois nursing home, despite the state’s immunity law. 

The ruling was handed down on Friday by the U.S. District Court for the Northern District of Illinois. The case stems from a neglect and misconduct lawsuit filed by the families of two residents against the Westchester Health and Rehabilitation Center, a 120-bed facility in a near-western suburb of Chicago, for its handling of COVID-19 within the facility. 

Westchester Health is operated by Aperion Care. The company did not return a request for comment from McKnight’s by production deadline. 

The families allege the provider failed to take preventative measures to prevent the spread of COVID-19 within its facility, despite knowing the risks it posed to the residents, according to court documents. 

They accused the facility of: mandating staff, regardless of if they experienced COVID-19 symptoms, to continuing reporting to work and caring for residents; not providing personal protective equipment to staff and; not isolating residents experiencing symptoms despite federal and state orders. 

Westchester tried to get the negligence dismissed by citing an executive order signed by the state’s governor in April 2020 that granted immunity to long-term care facilities from neglect claims and doesn’t create liability for willful and wanton misconduct. 

U.S. District Court Judge Manish Shah disagreed and said that the immunity order does create liability for nursing homes accused of intentional or negligent conduct. The judge also stated that “there are outstanding factual issues to resolve.” 

“Plaintiffs’ claim is that Westchester failed to protect its residents from infected nursing staff spreading the virus. There’s a difference between allowing the virus to spread by taking no preventative measures, and spreading the virus while affirmatively treating it or trying to prevent spread,” Shah wrote. 

“Only the latter is immunized, and it’s not clear from the complaints that the staff infected the residents in the course of providing COVID-related treatment — it’s just as reasonable of an inference that transmission occurred during routine, non-COVID-related care,” the judge added.