A top state court dealt a double blow to a nursing home named in a long-running wrongful death suit, finding in part that a Nevada liability waiver only protects individual healthcare providers from COVID losses — not the businesses they work for.
That could be a dangerous distinction for nursing homes, whom plaintiffs’ attorneys often target with lawsuits rather than going after specific frontline staff.
Most states offered facilities waivers from COVID lawsuits during the early months of the public health emergency, arguing they were necessary to entice organizations to take on sick patients. But a three-judge panel of the Nevada Supreme Court noted that state’s directive, 011, was silent on whether immunity extended to healthcare facilities. Other governors, the court wrote, included specific guidance to that effect in their executive orders.
Because the order didn’t spell it out in plain measures, the court leaned on existing doctrine that legal lists of specific persons or things can only be extended to other persons or things “of the same type.” And while the court found that a medical facility would be protected if a specific worker with immunity caused an injury, it decided that the lack of a policy to protect patients from COVID spread would not be covered.
“Directive 011 does not directly immunize petitioners from liability because the directive applies to individuals and not health facilities,” the justices wrote.
Nevada healthcare attorney Tom Vallas of Hoy Chrissinger Vallas told McKnight’s Long-Term Care News the court should have weighed more existing state statutes that define medical facilities that employ a broad class of healthcare employees as “providers of healthcare.”
“It seems inappropriate to redefine what a provider of healthcare is,” he said. “It is absolutely ignoring what the [standing] statute says.”
While the court’s Oct. 3 decision can’t be appealed, Vallas said other skilled nursing providers with similar cases would do well to argue the provider definitions outlined under the healing arts portion of state statutes.
“These entities can’t act except through a person,” he added. “It’s not as if there’s AI deciding whether to adopt a policy or not adopt a policy.”
Poor preparation alleged
Still, the decision allows the case against The Heights of Summerlin LLC, Summit Care LLC, and administrators LaToya Davis and Andrew Reese to proceed.
The lawsuit was filed by the daughter of a resident who died after contracting COVID the day she was being transferred from The Heights to a senior-living apartment complex for continued recuperation following surgery on a broken femur. The resident, Althea Porcaro, died eight days later.
The suit alleged that the facility failed to implement “effective” COVID safety protocols, continued allowing visitors amid wide community spread, and was negligent in training and supervision.
The defendants asserted immunity under the Public Readiness and Emergency Preparedness Act, or PREP Act, which the US Secretary of Health and Human Services activated in 2020. They also sought additional protection under Directive 011, which was issued by then-Nevada Gov. Steve Sisolak (D).
The lawsuit initially bounced from state to federal court before landing back at the state level, where a district court ruled against the defendants, who appealed to the state Supreme Court.
In addition to its state findings, the court also ruled that Davis and Reese could not use the federal PREP Act as a shield.
“We conclude that the PREP Act does not apply to a lack of action or treatment and therefore petitioners are not immune under it from claims based on a failure to enact COVID-19 policies,” the justices wrote. “In doing so, we align ourselves with federal courts around the country.”
‘Not a good decision’
Jeff Wolber, partner in the New York City Office of Hall Booth Smith and a PREP Act specialist, said the legal interpretation “is not a good decision for long-term care providers, unfortunately.”
“The Court adopted the use versus nonuse dichotomy and failed to observe that thermometers are covered countermeasures under the PREP Act when used for screening,” he told McKnight’s Long-Term Care News Friday.
The facility was using the tools to screen at a time when tests were unreliable and sometimes hard to come by, although court documents state the facility did not stop visitors from entering the building and failed to adopt broader infection prevention policies.
According to the Las Vegas Review-Journal, 30 residents died, and at least five related lawsuits were filed against the facility by 2021.
The state Department of Health and Human Services found “alarming deficiencies,” according to a 2020 investigation, including improperly fitted N95 masks in quarantine areas, a lack of social distancing, and a lack of timely and accurate COVID-19 case reporting.
Rachelle Crupi, representing Porcaro’s estate, argued that inadequate COVID policies led to conditions that caused her to become ill and die. The court agreed, adding that it was “adopting the reasoning of federal courts that had distinguished a failure to follow infection control procedures from administration or use of countermeasures” that would be protected under the PREP Act.
