For some time now, I have raised the potential for liability against employers in lawsuits brought by their employees for failing to provide certain basic protections against infection with the SARS-CoV-2 virus, especially in the case of health care employers. In the specific case of hospitals and nursing homes, we have already seen a number of lawsuits brought by patients or their survivors when the patient was infected by staff or other patients following their admission to the hospital or nursing home.
It is not surprising that we have not yet seen more lawsuits filed due to the fact that there have been immunity protections offered to hospitals and health care providers by a number of states and, to some extent under federal law, during the early years of the pandemic.
Some of the state legislatures extending limited immunity have allowed those laws to expire, other laws were only in effect during the time the Governor had declared a state of emergency, and in the case of at least one state, the legislature has repealed the immunity provision.
Further, there is some confusion among the courts as to whether federal law (Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 – the “PREP Act”) would extend liability protection to health care providers even in situations where the providers failed to implement or use the countermeasures covered by this law (see below). Much of this law remains in effect under declaration by the Secretary of Health & Human Services; the latest declaration will expire at the end of 2024.
The law does not offer immunity from liability under all situations. For example, an exception stated in the law is death or serious physical injury caused by willful misconduct. (Note that it is the misconduct that must be willful; not that there was intent to cause death or serious injury.) A case involving this situation must be brought in the federal court in Washington D.C.
The act also contemplates that health care providers will make a reasoned decision as to how to deploy covered countermeasures. It appears that even HHS agrees that if a provider fails to act purposefully or fails to make a decision or policy as to how the covered countermeasures are to be deployed, the protections under the act likely do not apply. Further, the defined covered countermeasures in the statute include a number of things, but as to respiratory protection, only respiratory protective devices that are approved by the National Institute for Occupational Safety and Health (“NIOSH”) are covered. By now, all of us have seen many hospital personnel unmasked or merely wearing procedure masks. NIOSH only approves respiratory protective devices (masks and respirators) that are N-95 or greater in quality, thus the use of procedure or surgical masks would not qualify as a covered countermeasure.
Many of the lawsuits brought by patients or their estates allege that the patient contracted COVID-19 because the facility failed to provide its staff with personal protective equipment (“PPE”), failed to teach the staff how to properly use that equipment, or failed to ensure that its staff used the PPE that it had been given. The PREP Act extends its protections to “injuries directly caused by the administration or use of a covered countermeasure[.]” 42 U.S.C. § 247d-6e(a). Thus, the failure to administer or use a covered countermeasure would seem to fall outside of the protections of the statute.
Defendants (health care providers) often seek to remove these cases from state court to federal court in order to avoid state law claims of medical malpractice, ordinary negligence and corporate negligence (which can lead to much larger awards from a jury) by asserting that the immunity provisions of the PREP Act apply and that federal courts have the sole jurisdiction over these cases. In the majority of decisions I can find, plaintiffs have been successful in remanding these cases back to state court under a variety of arguments, including that the PREP Act does not provide for a cause of action (in other words, a basis for bringing a lawsuit) other than the very narrow circumstances of death or serious physical injury resulting from willful misconduct or that the PREP Act does not even apply to the circumstances of the lawsuit.
In a case involving the death of a patient due to COVID-19 while being cared for at a rehab and nursing care facility (Mitchell v. Advanced HCS), the federal district court for the Northern District of Texas remanded the case (i.e., sent it back to state court from federal court) for trial, in large part finding that the PREP Act is an immunity statute, not a statute providing a cause of action (i.e., a basis for a lawsuit) absent the narrow exception stated above. Thus, the state law claims of medical negligence, ordinary negligence and corporate negligence can proceed, and to the extent that the immunity provided under the PREP Act applies, defendants can offer that as a potential defense.
In the case of Grohmann v. HCP Prairie Village, the plaintiff resided in an assisted living facility in order to ensure his safety and care. He contracted COVID-19 while at the facility and it was alleged in the lawsuit that the staff did not seek prompt medical care for his condition contributing to his death two days later. It was further alleged that the employer allowed its employees to work while sick with symptoms of COVID-19 and that the facility failed to train and monitor its staff’s use of PPE to ensure that the virus was not spread among the residents of the facility. It was further alleged that the facility undertook no efforts to isolate those residents with symptoms consistent with COVID-19 and failed to implement an infection control plan to prevent an outbreak of COVID-19 within the facility.
The plaintiff (the estate of Mr. Grohmann) filed their case in state court asserting state law claims of wrongful death, loss of chance of survival, and negligence. The defendant (assisted living facility) sought removal to federal court and the dismissal of all the state law claims based on their claim that the PREP Act was intended by Congress to preempt state law claims.
In deciding these jurisdictional and procedural questions, the federal district court in Kansas first decided that the narrow circumstance that would provide for exclusive federal jurisdiction of death or injury caused by willful misconduct does not apply because the plaintiff did not allege this in his lawsuit. The court then turned to the language in the statue that defines its scope as applying to “injuries directly caused by the administration or use of a covered countermeasure.” The court points out that the phrase “administration or use” is not defined in the statute. So, the court then turns to the Declaration of the Secretary of HHS which gives effect to provisions of the statute noting that it defines “Administration of the Covered Countermeasure means [1] physical provision of the countermeasures to recipients, or [2] activities and decisions directly relating to public and private delivery, distribution and dispensing of the countermeasures to recipients, management and operation of countermeasure programs, or management and operation of locations for the purpose of distributing and dispensing countermeasures.” 85 Fed. Reg. at 79,197.
The court then looks to prior decisions of cases involving the PREP Act decided by the federal district court of Kansas. “In eleven related cases, our court held that the PREP Act was ‘inapplicable’ to plaintiffs’ negligence claims where plaintiff’s ‘case is premised on inaction’ and there was ‘no clear allegation that any injury or claim of loss was caused by the administration or use of any covered countermeasure, let alone that the loss arose out of, related to, or resulted from the same.’” Eaton, 2020 WL 4815085, at *1 n.1, *6–7. The court went on to write, “Eaton reasoned that ‘the PREP Act addresses the administration or use of covered countermeasures. There is simply no room to read it as equally applicable to the non-administration or non-use of covered countermeasures.’” Id. at *8.
The court then went on to cite other federal district courts (including Florida and California) and even state courts (e.g., New York) that have come to the same conclusion.
Acknowledging that the failure to administer or use a countermeasure could still be protected by the PREP Act in the limited circumstance of allocating scarce resources, for example, early in the pandemic when the availability of countermeasures was in short supply and decisions had to be made as to which patients such countermeasures would be offered. In contrast to these rationing kinds of decisions, nonfeasance of simply not using countermeasures that were available would not provide the health care provider with the immunity provided under the statute.
In examining the facts of the present case, the court noted that the “plaintiff alleges that … failures to act directly and proximately caused the alleged harms. As inEaton, plaintiff here alleges that defendants failed to take various preventive measures to stop the entry, spread, and consequences of COVID-19 within the facility and that defendants’ failure to take those precautions led decedent to contract, develop, and die of COVID-19.”
Defendants try to bring the plaintiff’s claims under the reach of the PREP Act by pointing out some of the countermeasures employed by the facility, such as testing and the use of some PPE. However, the court points out that to bring the plaintiff’s claims under the PREP Act, the defendants would have to show that the “decedent’s death was causally connected to the administration or use of any drug, biological product, or device (i.e. a covered countermeasure).” The court goes on to explain, “The claims here are ‘precisely the opposite: that inaction rather than action caused the death.’”
The court then remanded the case to state court finding that the plaintiff’s claims do not fall within the scope of the PREP Act.
Having failed to successfully remove cases to federal court and dismiss state law causes of actions, defendants in cases in which a patient was infected while in their care, but defendants failed to use measures to contain the spread of COVID-19 in their institutions, face the potential for significant liability if plaintiffs can prove their cases in court.
I have not yet seen reported decisions of these kinds of cases in state court. My suspicion is that defendants, recognizing the potential liability they are facing, are settling these cases out of court. On the other hand, I am certain there are some cases proceeding to trial for which discovery and identification of expert witnesses has been underway. I’ll update you as I find reports of the outcomes of these cases.
Meanwhile, there is a related case, but with very different facts and issues presented, that was decided by the U.S. Court of Appeals for the Ninth Circuit (this is the court that handles appeals for federal courts in Idaho) earlier this year. The underlying case is one brought by the family of a deceased San Quentin Prison guard (Gilbert Palanco) against the San Quentin Prison, the state of California, the California Department of Corrections and Rehabilitation and certain specific prison officials, including health care providers, after prison guard Palanco was infected with the SARS-CoV-2 virus while on duty and subsequently died from COVID-19 complications. The defendants had asserted limited immunity under California state law, but the district court denied the grant of immunity. Defendants then appealed this decision to the Ninth Circuit Court of Appeals.
Early in the pandemic, prison officials ordered the transfer of 122 prisoners who were determined to be at high risk due to underlying medical conditions from one prison where there was an outbreak of COVID-19 to San Quentin State Prison where there were no known cases of COVID-19. Not surprisingly, this resulted in an outbreak at the San Quentin facility that killed guard Palanco and more than 25 inmates.
According to the panel of judges hearing the case on appeal, “Plaintiffs sufficiently alleged a violation of Polanco’s substantive due process right to be free from a state-created danger, under which state actors may be liable for their roles in creating or exposing individuals to danger they otherwise would not have faced.”
On appeal, the court does not decide the facts of the case, nor does it render a decision as to the underlying lawsuit. Rather, the court assumes that what plaintiffs allege is true for purposes of determining whether in that case, the defendants would be entitled to the immunity provided under law. In so doing, the panel of judges noted that, “the failure to adequately test or screen inmates prior to the transfer, the transfer itself, and the decision to house the inmates in open-aired cells upon arriving at San Quentin, among other things, placed Polanco in a much more dangerous position than he was in before, the danger was particularized and sufficiently severe to raise constitutional concerns, and defendants were aware of the danger that transferring potentially COVID-positive inmates to San Quentin would pose to employees.”
Harmful to their defense was the fact that prior to this event, California Correctional Health Care Services adopted a policy opposing the transfer of inmates between prisons, reasoning that transfers would “carr[y] [a] significant risk of spreading transmission of the disease between institutions.” Further, there was evidence that all of these prison officials and health care providers had been briefed about the dangers of COVID-19, the highly transmissible nature of the virus, and the necessity of taking precautions (such as social distancing, mask-wearing, and testing) to prevent its spread. Defendants were also aware that containing an outbreak at San Quentin would be particularly difficult due to its tight quarters, antiquated design, and poor ventilation.
Adding to the bad facts of the case, most of the 122 transferred inmates had not been tested for COVID-19 in more than three weeks despite the outbreak existing at the time of transfer, none had been screened based upon a review of symptoms, and the inmates were packed onto buses in numbers exceeding the guidelines set out by the Department of Corrections for inmate safety. Inmates who were showing signs of possible infection upon arrival at the San Quentin State Prison were not quarantined. Two days later, when the county public health officer learned of the transfer, prison officials were advised to immediately sequester the transferees, that mixing of the prison populations be restricted to impede spread of disease and that exposed staff and prisoners be required to mask. Unfortunately, prison officials did not heed this advice and asserted that the public health official had no authority over a state-run prison.
Over the ensuing three weeks, San Quentin State Prison went from no cases of COVID-19 to nearly 500. Medical experts issued a report raising concern of a “full-blown local epidemic and health care crisis in the prison and surrounding communities” if not contained. The Prison’s response was also criticized for the failure of staff and prisoners to be provided with PPE even though it was readily available on site. When staff were provided with masks, due to poor training, many wore the masks improperly. The report also cited unacceptable delays associated with testing. Again, prison officials declined to implement any of the recommendations made in the report and declined testing offered for free by one laboratory.
Not surprisingly, the outbreak continued unabated. By July, more than 1,300 inmates and 184 staff had tested positive. Two months later, those numbers had ballooned to more than 2,100 inmates and 270 staff. As of early September, approximately twenty-six inmates and one guard had died of COVID-19.
Guard Palanco was 55 years old and at high risk due to his underlying medical conditions. Part of Palanco’s responsibilities was to transport ill inmates to health care facilities. Despite these risks, he was not provided with PPE.
In reviewing this case on appeal, the panel of judges took all of the facts of the case to be true for determining whether defendants were entitled to immunity under California law. In doing so, the panel held that plaintiffs sufficiently alleged a violation of Polanco’s due process right to be free from a state-created danger. The Fourteenth Amendment of the U.S. Constitution mandates that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” The court pointed out that under the state-created-danger doctrine, state actors may be liable “for their roles in creating or exposing individuals to danger they otherwise would not have faced.” Liability ensues when state employers affirmatively, and with deliberate indifference, create or expose their employees to a dangerous work environment.
Interestingly, the defendants in this case also argued for immunity under the PREP Act, however, the district court denied the request finding that the PREP Act did not apply.
The court of appeals affirmed the holding of the district court, meaning that the case will now be returned to the district court for trial and the defendants will not be able to assert statutory immunity as a defense.
I have been quite shocked by the lack of infection control measures undertaken by hospitals, as well as their lack of transparency. I don’t know whether this results from poor leadership or disregard for patients under the mistaken assumption that they will have immunity from legal responsibility. However, I encourage health care leaders and boards to consider the court decisions to date to reassess their policies and procedures. Consider carefully cases of high-risk patients that are now at higher risk in a hospital, where they come to for treatment and healing and rely on care from health care professionals, than they would have been at home.
When I was CEO of a hospital and later, a health system, I placed patient and employee safety at the forefront of all my decisions. While I wished we lived in a world where all health care leaders did the right thing because it was the right thing, the realities are far more complex. However, the risk calculations are shifting with these court decisions to date, and I urge boards and leaders to at least proceed with open eyes, being aware of the risks of what I think will soon be a large number of trials and settlements, and all the associated costs, not to mention reputational damage and loss of the public’s trust.
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