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April 16, 2021

Health Law Weekly

U.S. Court in Illinois Finds State Emergency Order Doesn’t Immunize Nursing Home from Liability for COVID Spread Due to Misconduct

  • April 16, 2021

SSC Westchester Operating Company must face a suit brought under the Illinois Nursing Home Care Act after Lottie Smith and Rita Saunders, two residents of a nursing home owned by defendant, contracted COVID-19 in the early days of the pandemic, the U.S. District Court for the Northern District of Illinois held April 9.

The court rejected Westchester’s argument that the Governor’s executive order declaring the pandemic a disaster provided it immunity. The court said the order protected nursing homes from liability for death or injuries that occur while the facility "was engaged in the course of rendering assistance to the State" by "providing health care services in response to the COVID-19 outbreak," but in this case there were outstanding factual issues as to whether Westchester was providing adequate services in response to the outbreak.

Brady and Walsh alleged that Westchester violated the Illinois Nursing Home Care Act by knowingly exposing its residents to nursing staff who had tested positive for, or were displaying symptoms of, COVID-19, and failing to provide the nursing staff with personal protective equipment during March 2020. Westchester moved to dismiss both complaints for failure to state a claim.

The court refused to dismiss the claim, finding both plaintiffs plausibly alleged that Westchester was negligent in its care for residents through its handling of COVID-19. The court pointed to evidence in the complaint that Westchester told its nursing staff, including those who had tested positive and a nursing assistant who worked in another facility experiencing an outbreak, to continue reporting to work and caring for residents.

The court said these outstanding factual issues must be resolved before concluding that immunity applied. “There's a difference between allowing the virus to spread by taking no preventative measures, and spreading the virus while affirmatively treating it or trying to prevent spread. Only the latter is immunized, and it's not clear from the complaints that the staff infected the residents in the course of providing COVID-related treatment—it's just as reasonable of an inference that transmission occurred during routine, non-COVID-related care,” the court said.

The court found plaintiffs sufficiently alleged that Westchester consciously disregarded the risk to its residents when it knowingly exposed them to infected staff members who had no personal protective equipment.

Brady v. SSC Westchester Operating Co. LLC, Nos. 20 CV 4500; 4505 (N.D. Ill. Apr.9, 2021).