An Illinois nursing home has asked the state’s Supreme Court to adopt a broad interpretation of a COVID-19 immunity provision, arguing that the governor “knew how” to include more limitations in a 2020 executive order had he intended to do so.
An attorney representing Bria Health Services and its 107-bed Bria of Geneva nursing home last week asked the court to reject claims by the estates of five former residents that Gov. JB Pritzker (D) actually meant his order to be limited to specific providers operating under specific conditions.
The court’s decision will be closely watched as other states grapple with exactly how to interpret executive orders and emergency management provisions that offered healthcare providers protections in exchange for their continued acceptance of COVID patients.
In Illinois, one argument rests on the intended difference in using the word “a” vs. the word “the” to define a timeframe.
Attorneys for survivors of the five patients — all of whom died of COVID — insist the governor only meant for a provider such as a nursing home to be protected at “the” time it was taking specific steps to assist the state. Those included setting aside beds, stocking extra personal protective equipment and otherwise preparing to receive patients.
But Bria’s attorney told the court that the governor’s order was broader and intended to cover anyone rendering assistance to the state at any time during the emergency period. Pritzker issued his order on April 1, 2020 and extended it through May 29, 2020.
“There is no temporal limitation. It is at ‘a’ time during an emergency, which there was,” said Robert Chemers, a Chicago-based attorney for Bria, which operates 15 nursing homes in Illinois. “The governor knew how to add a limitation on immunity if he wanted to.”
Chemers cited other language within the order, and wording in an additional pandemic-related order, that specifically limited any claims to immunity from civil liability in cases involving “willful or wanton negligence.”
The plaintiffs’ attorneys also agreed that the language was clear on that count, but they pressed a lower court to have the Supreme Court certify — or clarify for the record — the intended scope of the order.
Chemers argued that the plaintiffs shouldn’t be allowed to claim that the order’s plain language is clear on hand but argue on the other that it is ambiguous enough to require justices to consult decades of existing law to interpret it themselves.
The plaintiffs, meanwhile, leaned on a friendly court brief filed by Illinois Attorney General Kwame Raoul that backed their more limited interpretation.
Chemers asked the court to disregard that opinion, as the justices are permitted to do. At least one justice appeared inclined to do so, saying that Raoul’s elaboration on the rule some four years later was akin to “Monday morning quarterbacking.”
