Nursing Homes Experience Scourge of COVID

Public Citizen News / September-October 2021

By David Villani

This article appeared in the September/October 2021 edition of Public Citizen News. Download the full edition here.

Nearly one-third of all coronavirus deaths in the United States have been linked to nursing homes. Although the disproportionately elderly population at these facilities has factored into the extremely high numbers, inadequate infection control measures have also played a part.

When the coronavirus started to spread throughout the United States, numerous nursing homes flouted infection-control regulations and COVID-19 related guidance by state and federal public health authorities. These decisions put the lives of their patients and staff at risk.

Now, in response to lawsuits by some of the families whose loved ones died of COVID as a result of the nursing homes’ inadequate safety measures, many of the facilities are arguing in court that they cannot be held responsible for their own negligence. Their theory is that the Public Readiness and Emergency Preparedness Act (PREP Act), a 2005 law passed to encourage the manufacture and distribution of vaccines, bars the families from bringing lawsuits about the nursing homes’ failures to protect residents.

In four cases now in the federal courts of appeals, Public Citizen is representing families of six residents who died of COVID-19 in spring 2020 in nursing homes in California, Kansas, and Texas. These cases are among more than 70 state-law negligence actions across the country in which nursing homes have argued that, in light of the PREP Act, they cannot be held responsible for the consequences of their failure to take measures to stop the spread of the coronavirus in their facilities.

Intended to encourage the development, manufacture, and distribution of certain drugs and devices during public health emergencies, the PREP Act eliminates people’s ability to pursue state-law claims for injury caused by the negligent “administration” or “use” of a “covered countermeasure.” The Act provides a compensation fund administered by the U.S. Department of Health and Human Services for some injuries. And if the injury was the result of “willful misconduct,” the individual can take advantage of a limited judicial procedure in federal court in Washington, DC.

“The idea was that if you got the swine flu vaccine and had an adverse reaction, or the nurse accidentally nicked an artery, any injury would be covered by the federal government,” said Adam Pulver, an attorney with Public Citizen representing the families. “Congress wanted to encourage the development of and administration of vital vaccines and drugs when there’s an emergency, and to ensure that manufacturers and health care providers could do so without having to worry about financial consequences should something go wrong.”

The statute was not intended to immunize health care providers for their decisions not to take steps that could save people’s lives. The families represented by Public Citizen each claim the nursing homes they entrusted with their loved ones’ care did just that. In each case, the nursing homes failed to take common-sense measures to protect their residents, ranging from failures to isolate residents known to have been exposed to COVID-19 to allowing symptomatic staff to interact with patients. In one case, the nursing home prohibited staff from wearing facial coverings at all, even as Americans throughout the country were masking up to stop the spread of the coronavirus.

In each of the four cases, the nursing home claims that the PREP Act blocks the families from suing them. In each case, a federal district court disagreed and held the PREP Act does not apply to the families’ claims based on negligent infection control policies. When the nursing homes appealed, Public Citizen stepped in to serve as co-counsel for the families and take the lead on the appeals.

In October 2021, Public Citizen’s Pulver will argue on behalf of the family of Ricardo Saldana in the United States Court of Appeals for the Ninth Circuit. In May 2020, Ricardo died of COVID-19 in a Glendale, California nursing home owned and operated by Glenhaven Healthcare. His family sued Glenhaven in California state court, alleging that administrators at Saldana’s nursing home failed to provide employees with appropriate personal protective equipment, banning them from wearing any facial coverings, and freely allowed exposed and symptomatic residents and staff to intermingle with vulnerable residents like Ricardo.

In response to the lawsuit, Glenhaven moved the case to federal court on the theory that it was acting under the auspices of the federal government, citing generic infection control guidance, and arguing that the PREP Act provides it with immunity, and that only federal courts can determine whether the PREP Act applies. In October 2020, a Los Angeles federal judge rejected Glenhaven’s arguments and ordered the case back to state court. Judges all over the country have done similarly, reflecting what one court called a “growing consensus.” Nursing homes have filed appeals in at least twenty similar cases.

A decision on Glenhaven’s appeal is not expected until 2022. Even if the district court’s decision is affirmed, the road to justice will be long. “The question before the court now isn’t whether Glenhaven is responsible for Ricardo’s death, but whether the Saldanas can try and make their case,” Pulver said. “The meritless delay tactics of the nursing home defendants is dragging out the mourning process for the families they victimized.”