On February 22, 2022, the Ninth Circuit ruled a COVID-19 wrongful death suit brought against a nursing home is not preempted by a federal health emergency law. The court affirmed a district court’s remand order which stated that the Public Readiness and Emergency Preparedness (PREP) Act did not completely bar a family’s claims for a COVID-19 related death in the case of Jackie Saldana, et a l v. Glenhaven Healthcare LLC, et al. 22 Cal. Daily Op. Serv. 2192 (9th Cir. Feb. 22, 2022). As a result, Glenhaven Healthcare LLC must face claims that it caused resident Ricardo Saldana’s COVID-19 related death in state court.
The litigation surrounds the PREP Act. This Act authorizes the Secretary of the Department of Health and Human Services to issue a PREP Act declaration which provides immunity from liability during a present or credible risk of a future public health emergency. The Ninth Circuit found that the PREP Act creates an exclusive federal cause of action for claims of willful misconduct but not negligence claims rooted in state law. The court’s panel stated, “The text of the statute shows that Congress intended a federal claim only for willful misconduct claims and not claims for negligence and recklessness." The opinion further comments, “without more than government regulations and recommendations, Glenhaven has failed to establish that it was 'acting under' a federal official, and it has not identified a duty of the federal government that it performed.”
The decision is a win for deceased nursing home residents’ families, since the Ninth Circuit is home to the second-largest number of nursing home residents in the country. However, this fight is likely far from over. Plaintiff’s counsel opined that this venue disagreement surely will not stop until the Supreme Court of the United States (SCOTUS) weighs in.
Numerous states enacted COVID-19 legislation specifically barring tort claims pertaining to the pandemic's impact on the long term care residency. This Ninth Circuit battle is just one of a number of ways the long term care industry expects the plaintiffs' bar to attack it for pandemic exposure.
