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Las Vegas Nursing Home With 30 COVID Deaths Says It’s Immune From Lawsuits

December 6, 2021
Author: Daniel Gala

A Las Vegas nursing home with a history of documented failures to follow basic COVID protocols and which has had 30 residents pass away due to COVID-19 has argued that federal law protects it from wrongful death lawsuits filed by the families of the deceased, the Las Vegas Review-Journal has reported.   

The 190-bed Heights of Summerlin has seen more than 100 residents test positive for COVID-19 since the pandemic began. Additionally, almost the same number of the facility’s 200 staff members also have tested positive. Now, at least seven lawsuits and four arbitration cases have been filed against The Heights of Summerlin alleging that the skilled nursing facility was negligent in protecting its residents from the danger posed by COVID-19.   

The plaintiffs in those cases would seem to have a great deal of evidence to support their claims that The Heights of Summerlin failed to take basic measures to prevent the spread of the coronavirus among staff and residents. In 2020, the Nevada Department of Health and Human Services released a report citing a number of deficiencies at The Heights of Summerlin, including several involving the improper use of PPE.   

“Concerns identified included: Staff assigned to the quarantine areas used N95 and were not fit tested, or medically cleared for use of the N95 mask. Residents received physical therapy in the therapy gym without wearing face mask. Residents outside of their rooms not wearing face mask, including a symptomatic resident in the quarantine area,” the 2020 report stated. “A laboratory vendor visited several areas in the facility, including the designated quarantine areas carrying a cart with supplies without properly disinfecting the cart. Staff were not clear about the personal protective equipment (PPE) that had to be used in the designated quarantine areas.”   

The list goes on. And yet lawyers for The Heights of Summerlin are claiming that federal law completely shields the nursing home from liability. Specifically, in arguing that the cases against The Heights should be tossed out of court, defense counsel has cited the recently amended Public Readiness and Emergency Preparedness Act (PREP Act), which protects a broad range of healthcare companies from pandemic-related lawsuits.   

“The PREP Act is designed to enable healthcare providers, including skilled nursing facilities, to focus on using every available means to combat a pandemic and save lives without being chilled in their efforts by the threat of lawsuits,” counsel for The Heights of Summerlin argued in court documents quoted by the Review-Journal.   

However, exactly which companies the PREP Act’s legal protections apply to is not exactly clear, and the answer could mean the difference between, on the one hand, plaintiffs receiving vindication in a court of law as well as financial compensation for the loss of a loved one, and, on the other, receiving nothing while knowing that the people who caused their loved one’s death have gotten away without punishment.   

The emotional toll that this legal uncertainty has taken on the survivors has been immense.   

“We’ve had no closure, we’ve had no resolve, we’ve had no peace,” plaintiff Sylvia Smith, who filed a lawsuit against The Heights of Summerlin over her father’s April 2020 death, told the Review-Journal. “It’s the family’s responsibility to fight for their family, dead or alive. And that’s what we’re doing.”   

In a positive development for plaintiffs seeking to hold nursing homes accountable for substandard care, the federal Third Circuit Court of Appeals recently rejected an attempt by two nursing homes to have state cases removed to federal court based on the PREP Act. Thus far, the PREP Act argument made on behalf of nursing home defendants has been rejected in approximately four dozen cases nationally, according to the Review-Journal, which cited only one instance of a court agreeing that the PREP Act’s legal shield applied to nursing homes alleged to have been negligent in their pandemic response.   

Sources:   

Nevada Erickson, Briana. (8 November 2021). Summerlin nursing home says it’s not liable in COVID death lawsuits. Las Vegas Review-Journal.   

Appeals Court Affirms Nursing Homes Not Immune From State Claims Under Federal COVID Immunity Law

November 3, 2021
Author: Daniel Gala

In a win for the estates and families that have sued nursing home operators across the country over the more than 135,000 nursing-home-related deaths that have taken place during the COVID-19 pandemic, a federal appellate court ruled October 20 that two lawsuits against New Jersey nursing homes belong in state—rather than federal—court.   

The lawsuit ruling—the first appellate decision to specifically address whether nursing homes are covered by federal COVID-era immunity laws—represents an enormous win not just for the plaintiffs in the two cases under appeal but for nursing home plaintiffs across the country. In response to COVID lawsuits, many defendant nursing home operators have argued that their cases belong in federal court because they are covered by the federal Public Readiness and Emergency Preparedness (PREP) Act, a 2005 law that empowers the Secretary of Health and Human Services (HHS) to grant certain individuals and entities immunity from specific types of lawsuits during a public health emergency.   

In brief, the PREP Act allows the HHS Secretary to grant immunity for “covered persons” for legal claims arising from their deployment of countermeasures used in response to a public health crisis, except for in situations involving willful misconduct.   

Defendant nursing homes have argued (1) that they qualify as “covered persons” under the PREP Act and that (2) this means that essentially any COVID-related lawsuits against them—even those involving solely state claims, like the two cases in question—would become a matter for federal courts to decide.   

However, the Third Circuit Court of Appeals has now officially shot down that argument in a precedent-setting opinion that will hold considerable legal weight in similar cases, both those currently pending and those yet to be filed.   

“The defendants invite us to assert ‘the judicial Power of the United States’ over a matter that belongs to the states,” US Circuit Judge David Porter wrote for the Third Circuit Court of Appeals in an Opinion issued October 20. “We decline that invitation. We will not exercise power that the Constitution and Congress have not given us. There is no COVID-19 exception to federalism.”   

The two nursing home lawsuits that were on appeal involved the tragic deaths of individuals who had been residents at two different New Jersey nursing homes— Andover Subacute Rehabilitation Centers I and II—both owned by defendants Chaim “Mutty” Scheinbaum and Louis Schwartz through their company Alliance Healthcare. The plaintiffs—family members of the deceased and representatives of their estates—sued the nursing homes, Alliance, and the owners, alleging that their loved ones died “as a result of Defendants’ failure to exercise due care with respect to coronavirus infections,” in the words of the district court judge who heard the cases.   

While the plaintiffs originally filed their lawsuits in New Jersey state court, the defendants moved to have the cases removed to federal court, arguing that the federal PREP Act applied to them and that it preempted any state court claims the plaintiffs might bring. Originally passed into law in 2005, the PREP Act allows certain individuals and entities to escape liability during a public health emergency by receiving a declaration from the Secretary of Health and Human Services (HHS).   

On March 17, 2020, the then-HHS Secretary issued the department’s first COVID-related declaration, which has since been supplemented by nine amendments and a technical correction. The defendant nursing homes argue that the March 2020 declaration as amended applies to them and preempts any state law claims.     

After the defendants succeeded in having the two cases removed from New Jersey state court to federal district court, the plaintiffs sought to have it returned to state court, and the district judge sided with the plaintiffs in an opinion filed August 12, 2020.   

“Defendants state they are ‘covered persons’ under the PREP Act and that such a ‘covered person’ shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure during a public health emergency,” US District Judge Kevin McNulty summarized in his August 2020 opinion.   

However, in later analysis, District Judge McNulty concluded that, even if the PREP Act did cover the defendants, the immunity granted by the PREP Act from state and federal legal claims is not absolute, as defendants argue it is.   

“Nothing in the language of the Act suggests that it was intended to more broadly displace state-law causes of action for, e.g., malpractice or substandard care—even if proper care possibly would have entailed administration of such countermeasures [as are covered by the PREP Act],” District Judge McNulty found.   

Seeking to keep the cases in federal court and overturn the district court’s PREP Act findings, the defendants then appealed to the Third Circuit Court of Appeals, marking the first time that a federal appellate court had opined on the issue of whether the PREP Act and the HHS declarations fully preempt all state claims related to actions nursing homes took related to the COVID-19 pandemic.   

“The nursing homes…argue that complete federal preemption of the [plaintiffs’] estates’ claims warrants removal to federal court,” the Third Circuit wrote in its October 20 opinion. “They argue that the PREP Act is so pervasive that the estates’ state-law negligence claims are really federal claims under the PREP Act, and are thus removable to federal court. We disagree.”   

The Third Circuit’s opinion, affirming the ruling of the district court, marked an enormous victory for nursing home plaintiffs across the country and a huge setback for nursing home defendants. Going forward, all district court judges facing this issue will be required to the Third Circuit’s precedent-setting opinion for guidance.   

The two cases at issue will now return to New Jersey state court for further proceedings.   

If you or a loved one has been the victim of an unscrupulous nursing home operator, contact TheLawFirm.com today for a free legal analysis!   

  Sources:   

United States Department of Health and Human Services (HHS). (Last updated 8 October 2021). Public Readiness and Emergency Preparedness Act. COVID-19 PREP Act Declarations. Office of the Assistant Secretary for Preparedness and Response   

United States District Court District of New Jersey. (12 August 2020). Opinion. Civ. Cases Nos. 20-6605 and 20-6985   

United States Court of Appeals for the Third Circuit. (20 October 2021). Opinion of the Court. Case 20-2833

Families Sue Nursing Home Over Loved Ones’ COVID Deaths

Oct 14, 2021
Author: Daniel Gala

The families and estates of 14 individuals who died of COVID-19 while residents at a nursing home in Northern California have sued the home, the owner, and several of his business entities, alleging that the facility was not licensed for operation and that the extremely inadequate care residents received amounted to elder neglect and abuse.

With the Centers for Medicare & Medicaid Services reporting more than 137,000 COVID deaths among nursing-home residents and more than 2,000 COVID deaths among nursing-home staff nationwide, it is highly likely that many similar lawsuits will continue to be filed across the country.

Filed in Shasta County state court, the lawsuit claims that, despite receiving multiple citations from the California Department of Public Health (CDPH), the Windsor Redding Care Center “continued its custom and practice of ignoring regulatory requirements and infection control procedures.”

As a result, plaintiffs allege, the Windsor suffered a massive COVID outbreak, with 60 of the facility’s 83 residents ultimately testing positive for the virus and roughly two dozen dying from complications due to the disease.

An inspection conducted by the CDPH on September 25, 2020 documented a number of serious violations, including multiple instances of nursing-home staff reporting COVID-19 symptoms yet being ordered to report to work regardless.

“Both [of the employees who had reported symptoms but were forced to work] later tested positive for COVID-19 but only after exposing countless residents to the virus,” the lawsuit says. “The inspector noted that one of the reasons the employees may have felt compelled to work was that Windsor had adopted a punitive sick leave policy in violation of California law.”

The CDPH inspection also revealed chronic understaffing and a profound lack of training, including training on basic elements of PPE (Personal Protective Equipment) use. According to the lawsuit, “[W]hen the inspector asked one nurse who was wearing a mask on her chin whether the mask should be covering her nose and mouth she responded by stating ‘I don’t know.’”

Originally filed August 26, the lawsuit includes six causes of action, including: abuse/neglect of an elder, wrongful death, fraud, and negligence. The two other claims involve alleged violation of California’s Patient Bill of Rights and of the state’s unfair business practices act.

An Unlicensed Facility, An Owner with a Track Record of Violation

Inexplicably, the Windsor Redding Care Center had continued to house residents despite its owner being denied a license to operate the facility years before the pandemic struck. In July 2016, the CDPH issued a notice of denial for the “River Valley Healthcare & Wellness Center” at 2490 Court Street, Redding, CA. The website for the defendant Windsor Redding Care Center (www.windsorreddingcc.com) lists an identical address for its facility.

“After careful review and consideration of your application and all of the supporting information, CDPH denies your application for a license to operate the above-reference [sic] facility,” states the CDPH denial letter, which is addressed to notorious nursing-home owner-operator Shlomo Rechnitz. https://www.documentcloud.org/documents/21069830-denial-river-valley-healthcare-wellnes-centre-lp

According to the CDPH letter, the denial was based in large part on Rechnitz’s past record as a nursing home owner-operator, with the agency’s review having found that facilities “owned, managed, or operated” by Rechnitz “directly or indirectly” had been cited with 265 different federal violations during the three years from June 2013 to June 2016.

These violations include numerous documented incidents of failure to provide a safe environment; failure to adequately monitor residents’ medication regimens; failure to maintain sufficient food supplies to meet dietary standards; failure to ensure compliance with infection-control procedures; and many, many more.

For years, Rechnitz has been accused of enriching himself by severely cutting costs at his nursing-home facilities, reducing staffing, services, and training to the point where he has been accused on multiple occasions of putting the health and safety of residents and staff at serious risk.

An April 2021 investigation by the nonprofit news outlet CalMatters into the state’s failing nursing-home licensing system revealed that Rechnitz, via his numerous companies, is California’s largest nursing home owner, controlling upwards of 80 different facilities with a combined total capacity of over 9,000 residents.

Rechnitz has been able to amass his empire despite his facilities repeatedly being cited for serious violations. In 2014, he was able to purchase 18 additional nursing homes through a bankruptcy auction, over the objections of then-California Attorney General Kamala Harris.

With the already-poor conditions at nursing homes across the country having exacerbated the horrific toll of COVID-19, it is likely we have only seen the beginning elder abuse lawsuits related to the ongoing pandemic.

If you or a loved one has been the victim of a nursing home that has failed to meet its required standard of care, contact TheLawFirm.com today for a free legal consultation!

Sources:

Centers for Medicare & Medicaid Services. (Last Updated 7 October 2021). COVID-19 Nursing Home Data

California Department of Public Health. (8 July 2016). RE: NOTICE OF DENIAL OF APPLICATION

Superior Court of the State of California County of Shasta. (26 August 2021). Complaint and Demand for Jury Trial. Hearden et al. v. Windsor Redding Care Center, LLC, et al

Wiener, Jocelyn. (6 April 2021). California oversight of nursing homes called ‘befuddling,’ ‘broken’. CalMatters

Nursing Home Wrongful Death Due To Corona Virus (Covid-19)

May 11, 2020
Author: Jeremy Fietz

Did your loved one contract the novel CORONA VIRUS (COVID-19) at a nursing home?    

Our investigations have revealed that some nursing homes may be either too late or too sloppy in their implementation of infectious disease protocols issued by the Department of Health & Human Services, Center for Disease Control.   

See - Nursing Homes Preparedness Checklist  

Very early in the spread of the novel corona virus (Covid-19) in the United States, it was identified that the elderly were at particular risk due to the nature of the virus.  A nursing home in Washington State was the first cluster of contagion in America in February 2020.  The risk to elderly residents of nursing homes was well known from the very beginning and yet some nursing homes did the bare minimum (or less) to protect our loved ones from this deadly virus.   

Actions to protect the nursing home residents should include strict infection controls, disinfection of all equipment between use by residents, disinfection of caregivers between contacts with different residents, strict food preparation and service protocols, limiting unnecessary contact between residents and staff, eliminating unnecessary contacts between residents, eliminating contacts between residents and outsiders, establishing strict disinfection procedures when anyone from outside the facility (including workers) enters the facility.  These are simple common sense practices that, if implemented, may prevent the death of many of our nation’s elderly.   

If your loved one is at a nursing home currently, please help protect them from viruses by asking about the facility’s adherence to the CDC’s guidelines and infection controls.   

If you lost a loved one, please accept our deepest sympathies for your loss.   Losing a loved one is always sad.  When it is preventable it becomes a tragedy.   

We have handled nursing home wrongful death claims for over 20 years.  Call now for a free evaluation of your potential claim. 

Call now to speak with a nursing home neglect attorney for a free consultation:
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