A Pennsylvania senior living community and a skilled nursing facility seeking to have COVID-19 wrongful death lawsuits dismissed under federal immunity protections were denied by a federal appeals court, which said it had no jurisdiction over the cases.
A three-judge panel for the U.S. Court of Appeals for the DC Circuit on Friday dismissed appeals from Watermark Retirement Communities and Fair Acres Geriatric Center. The communities invoked the Public Readiness and Emergency Preparedness, or PREP, Act in separate lawsuits against them that accused the operators of negligence and failing to protect residents from COVID-19.
The DC Circuit Court declined to hear the appeals from U.S. District Court for the Eastern District of Pennsylvania, which declined to dismiss the cases. The appeals court ruled that the PREP Act did not give the court the jurisdiction to hear immunity appeals from courts outside of its geographical boundaries.
The PREP Act provides immunity from federal and state legal claims relating to the administration of certain medical countermeasures during a declared public health emergency. The act limits lawsuits against covered persons who administer covered countermeasures, including drugs or medical devices, to treat disease.
Blue Bell Place
In January 2020, Anne Jean Cannon was admitted to Blue Bell Place, a Blue Bell, PA-based assisted living and memory care community operated by Watermark. The lawsuit alleges that three weeks into Cannon’s stay, her family saw indications that she was not regularly bathed or provided changes of clothing. The family also alleged that the facility failed to implement a protocol to protect Cannon from falling after she had fallen twice.
The lawsuit additionally says that in April 2020, Cannon tested positive for COVID-19 but showed no symptoms. Despite her lack of symptoms, a nurse assistant reportedly called Cannon’s son to inform him that the community planned to treat Cannon with the experimental drug hydroxychloroquine for five days. At the time, the drug was conditionally authorized for a brief period for emergency use to treat COVID-19, but only in a hospital setting for symptomatic individuals ineligible for a clinical trial.
The Cannon family said that the son expressly declined Blue Bell’s proposal to treat her with the drug, noting that she had atrial fibrillation and that hydroxychloroquine was known to cause adverse reactions in people with heart issues.
Despite the refusal and Cannon’s health history, according to the lawsuit, the staff allegedly administered the drug for five days beginning April 22. Three days into her treatment, Cannon complained of gastrointestinal distress, headaches and other adverse reactions, the complaint states. She died on May 4, reportedly from a cardiac event and COVID-19.
The lawsuit claims “negligent, grossly negligent, careless and reckless actions,” including failure to ensure adequate hygiene, to protect Cannon from abuse and to provide adequate COVID-19 treatment, as well as the administration of hydroxychloroquine without consent and against Cannon’s legal proxy’s expressed wishes.
Watermark moved to dismiss the complaint, citing PREP Act immunity, arguing that the complaint relates to the administration of hydroxychloroquine, a covered countermeasure. The district court denied the motion, stating that the emergency use authorization for the drug was limited to hospitalized patients with COVID-19. The court found that Watermark’s use of the drug did not fall within the scope of the drug’s FDA emergency use authorization.
Watermark declined to comment on the case to McKnight’s Senior Living.
Fair Acres
In the Fair Acres Geriatric Center case, the skilled nursing facility operated by Delaware County was sued after Christopher David Beaty, a 15-year resident with underlying comorbidities, died on June 6, 2020, due to complications from COVID-19.
According to the lawsuit, Beaty’s roommate began exhibiting COVID-19 symptoms, but Fair Acres kept the two residents in the same room until their COVID-19 test results came back. The roommate tested positive and was moved, but Beaty developed a fever soon after and was admitted to the hospital, where he tested positive for COVID as well as pneumonia and acute respiratory failure, the lawsuit states.
Beaty’s family alleged “negligent, grossly negligent, reckless and wanton acts, omissions and occurrences.” They also alleged a broader failure by Fair Acres to prevent the spread of COVID in the facility, claiming that the staff failed to properly use personal protective equipment, ensure social distancing, create a sanitary environment, establish policies to isolate sick residents and routinely test residents and employees.
Like Blue Bell, Fair Acres and Delaware County moved to dismiss the case, citing PREP Act immunity.
In both cases, the circuit court was asked to review decisions that denied motions to dismiss due to the PREP Act immunity. The circuit court noted that appeals from the District Court for the Eastern District of Pennsylvania typically are heard by the 3rd Circuit, not the D.C. Circuit. The D.C. Circuit court found that it lacked jurisdiction and dismissed both appeals.
