Hospital and Healthcare Associations File Amicus Brief in COVID Nursing Home Suit

Written by: Eve Soldatos, Esq. and Kyle A. Schiedo, Esq.

Edited by: Nicole A. Callahan, Esq.

On June 5, 2020, plaintiff Vivian Rivera-Zayas brought an action in Kings County Supreme Court against Long Island nursing home Our Lady of Consolation Nursing and Rehabilitative Care Center, claiming that the nursing home was negligent, reckless, and willful in their failure to implement appropriate COVID-19 infection prevention policies. Ms. Rivera-Zayas alleges that her mother, Ava Martinez, a then 78-year-old woman, was admitted to Our Lady of Consolation on  January 8, 2020 for rehabilitation following a total knee replacement and was otherwise expected to return home. She further alleges that her mother contracted COVID-19 at the nursing home, resulting in her death on April 1, 2020, and is now looking to hold the nursing home responsible.

On October 26, 2020, the defendant nursing home filed a Notice of Removal, seeking transfer of the case to the United States District Court for the Eastern District of New York on the grounds that the plaintiff’s allegations arose under federal law, namely the Public Readiness and Emergency Preparedness Act for Medical Counter Measures Against COVID-19 (“the PREP Act”). The matter was assigned to the Honorable Nicholas Garaufis, Senior United States District Judge of the United States District Court for the Eastern District of New York.

On November 25, 2020, the plaintiff filed a Motion to Remand, seeking a return of the matter to New York State Supreme Court, Kings County. The plaintiff argued that the PREP Act does not apply to the instant matter, as it contemplates the action of a countermeasure, and the plaintiff’s claims do not plead the failure of a countermeasure but rather the defendant’s failure to prevent the entry and/or spread of COVID-19. As such, plaintiff asserted that the federal court lacked subject matter jurisdiction and remand to state court would be appropriate. This motion is still pending.

On February 5, 2021, the defendants filed a Motion to Dismiss the plaintiff’s complaint on the basis that the injuries alleged arose out of the administration and use of covered countermeasures, therefore triggering immunity from suit and preemption provisions of the PREP Act, as well as New York’s Emergency or Disaster Treatment Protection Act (“EDTPA”).  The EDTPA affords immunity from civil liability to healthcare professionals and facilities stemming from the treatment of individuals with COVID-19 under circumstances associated with the public health emergency. The plaintiff’s opposition to defendants’ motion reiterated her position that the PREP Act does not apply because the claims do not arise out of the use of a covered countermeasure and, therefore, are not completely preempted and do not give rise to federal jurisdiction. The plaintiff also argued that the action must be remanded to state court to address the applicability of the EDTPA, which was repealed in its entirety on April 6, 2021.  The plaintiff asserted that the EDTPA fails to afford immunity to the defendants because the repeal applies retroactively based on the legislative intent of its sponsor, Assemblyman Ronald Kim, to hold health care facilities, administrators, and executives accountable for the deaths of nursing home residents during the COVID-19 pandemic.

On June 4, 2021, the defendants filed a Reply memorandum of law in further support of their Motion to Dismiss, restating that the plaintiff’s claims fall under the PREP Act and arguing that the repeal of the EDTPA is not retroactive. Defendants assert that the application of the EDTPA is prospective because the repeal provides no clear expression of intent to the contrary, which is not only evident in the plain language of the law but also in the legislative history. Defendants further argue that Assemblyman Kim’s wishes that the repeal be given retroactive intent is irrelevant and inconsistent with basic legal and legislative principles.

On June 11, 2021, with the permission of the Court, the Greater New York Hospital Association (“GNYHA”) and the Healthcare Association of New York State, Inc. (“HANYS”), filed an amicus curiae brief in support of the nursing home’s Motion to Dismiss and in opposition to the plaintiff’s Motion to Remand on behalf of the interests of New York’s not-for-profit and public hospitals and healthcare facilities. In their arguments, GNYHA and HANYS ask the Court to find that that the repeal of the EDTPA is not retroactive, stating that the plain language of the repeal law is silent on the issue. The Associations assert that if the legislature intended the repeal to be retroactive such language would have been unambiguously included, as it was when the EDTPA was passed. Further arguments highlight the EDTPA’s recognition of the extent of the public health crisis and the dire conditions and circumstances healthcare facilities and workers were forced to face, including making split-second decisions about pandemic treatments. Additionally, the Associations asked the Court to find that the PREP Act completely preempts state law, conferring federal jurisdiction over allegations related to covered countermeasures, citing several to Department of Health and Human Services declarations and national caselaw.

The Court’s decisions in this case have potentially far-reaching effects in that they could open the floodgates of litigation against health care providers and facilities previously insulated from liability related to care and treatment of COVID-19 patients during the height of the pandemic.  The Federal Court’s decision will impact the scope of protection provided by the PREP Act for actions taken by healthcare providers and facilities, particularly in the early stages of the pandemic.  In the event the case is remanded back to state court, a critical issue will be whether the April 6, 2021 repeal of the EDTPA will apply retroactively, thereby eliminating the protections intended by its passage.