A Staten Island nursing home must face a pandemic-era negligence suit that does not allege COVID missteps alone but rather broader infection control lapses, a New York appeals court has ruled.

The judge’s decision limits the reach of immunity the state granted healthcare providers during the pandemic, but it conflicts with findings in other courts and states. It also demonstrates the lingering uncertainty of defending nursing homes from claims only nebulously connected to COVID four years after the first cases erupted here.

In the wake of the Public Health Emergency declaration, the majority of states and the federal government adopted immunity provisions that allowed providers to deliver COVID care under federal guidance without fear of legal repercussions.

The Richmond Center for Rehabilitation and Specialty Healthcare in New York last year asked the Supreme Court for Richmond County to dismiss gross negligence and wrongful death claims brought by the family of Vibert Yearwwood, a resident for nearly four years until his late-2020 death.

Although his death was not from COVID, the facility argued that claims about its infection control policies and practices during the pandemic were covered by both New York’s Emergency Disaster Treatment Protection Act (EDTPA) and the federal Public Readiness and Emergency Preparedness (PREP) Act. 

Yearwwood died following conditions such as osteomyelitis, pressure ulcers, chronic Clostridium difficile and sepsis.

He had COVID and recovered from it seven months before his death, the judge said in referencing submitted medical records. Still, the family outlined several infection control concerns that it said should not be viewed as protected “countermeasures” under PREP.

“The defendant failed to maintain an infection control program before and during the COVID-19 pandemic designed to provide a safe, sanitary and comfortable environment in which residents vulnerable to infection reside and where healthcare provider[s] work [and] defendant failed to have an infection control program which investigated, controlled and took action to prevent infections in the facility,” the plaintiffs argued.

They also noted in their lawsuit that the Richmond facility had been cited by federal agencies and regulators 24 times in a four-year period, “including for failure to ensure that an infection prevention and control program was maintained to help prevent the development and transmission of communicable diseases and infections.”

Staffing, PPE limited by COVID

Other state courts have found that impacts on operations due to COVID outbreaks or other COVID-related limitations also would protect healthcare providers from such civil suits. In Connecticut last year, for example, the state Supreme Court found that COVID-related understaffing that affected patients without COVID was still protected.

An attorney not involved in the Yearwwood case told McKnight’s Long-Term Care News Monday that the decision “appears to leave the door open” for application of both the state and federal law after more evidence is submitted in the pre-trial discovery process. Jeff Wolber, of Hall Booth Smith, said his observation is based on research performed representing healthcare providers caught up in similar battles.

Judge Wayne M. Ozzi applied the standards of his Feb. 22 decision only to Richmond’s early-stage motion to dismiss.

Wolber said limited use of personal protective equipment — impeded by major supply chain issues during the first year of COVID — would likely come into play in the case.

“When the statutory language and relevant HHS Declarations are fully appreciated, they provide broad immunity from suit with respect to all claims for loss relating to a defendant facility’s use and/or allocation of PPE, among other things, against COVID-19,” he said. “Since PPE was the quintessential tool used for infection control during the pandemic, a claim of negligent infection control will almost always relate to the facility’s use of PPE and should therefore trigger PREP Act immunity.”

The case may be appealed further up the New York chain, and the parties could ultimately seek review from the Supreme Court on the PREP Act issue. Trial courts have so far been split on similar issues.

“Other state trial courts have appreciated these issues and granted dismissal under the PREP Act’s plain language,” Wolber said. “Ultimately, we believe things will be ironed out at the appellate level, and the PREP Act will be applied in similar claims, as both the legislature and the Secretary of HHS intended.”

The judge in the Richmond case did hand the facility one victory in last week’s ruling: He  dismissed a wrongful death claim brought by Yearwwood, agreeing with Richmond that the statute of limitations for such a claim had passed.