Stearns Nursing and Rehabilitation Center and two of its staff members argue that a wrongful death suit involving a resident who contracted Covid-19 should be dismissed because the Public Readiness and Emergency Preparedness Act (PREP) offers exclusive remedy for pandemic-related claims.
A motion to dismiss the lawsuit and supporting memorandum were filed on April 8 through attorney Jonathan McCrary of Sandberg Phoenix & von Gontard PC in St. Louis.
“In short, the PREP Act wholly displaces State law causes of action for claims falling under the purview of the PREP Act and declarations issued pursuant to the PREP Act, and provides an administrative, no-fault recovery scheme for all related losses,” McCrary wrote.
He explained that the PREP Act was enacted as part of the national emergency response framework with the Public Health Service Act. Congress entrusted the Department of Health and Human Services to administer public health functions during a national health crisis, which would include a pandemic.
The PREP Act authorizes the Secretary of the Department of Health and Human Services (HHS) to provide immunity from civil liability to individuals and companies participating in the response to the national emergency.
The defendants argue that the PREP Act’s immunity applies in this case because the HHS Secretary declared the Covid-19 pandemic a public health emergency on March 17, 2020.
“Potential claimants are not without remedy, however, as the PREP Act provides an exclusive remedial scheme for loss claims related to a covered person’s use of countermeasures for PREP Act related claims, and it provides immunity against such claims under all other laws,” McCrary wrote.
The defendants argue that the complaint should be dismissed, because the plaintiff failed to exhaust the available administrative remedies allowed under the PREP Act by failing to file a claim through the Countermeasures Injury Compensation Program.
They also argue that pursuant to the PREP Act, all claims must be filed and maintained only in the U.S. District Court for the District of Columbia.
“In summary, the PREP Act both completely preempts and provides immunity for plaintiff’s claims. It is clear Congress enacted the PREP Act to encourage individuals and businesses to step forward to fight the pandemic, rather than stepping back to avoid the expense and distraction of protracted litigation, in exchange for immunity,” McCrary wrote. “Plaintiff’s claims fall squarely and plainly within the scope of the PREP Act and its protections …”
The lawsuit was originally filed by attorney Eva Golabek of Kralovec Jambois & Schwartz in Chicago on behalf of plaintiff Catherine B. Crisel, as administrator of the estate of Bernitta Rena Howard, deceased. The suit was filed on Feb. 23 in the Madison County Circuit Court against Stearns Nursing and Rehabilitation Center LLC, Aurora Cares LLC, doing business as Tara Cares LLC, Holly J. Brockman, R.N., and Haley J. Dressler-Osborn, LPN.
The defendants removed the case to the U.S. District Court for the Southern District of Illinois on April 8.
The lawsuit alleges Howard was a patient at Stearns Nursing and Rehabilitation Center from about June 2017 to Aug. 4, 2020. Crisel claims that on July 27, 2020, two positive Covid-19 cases were reported in the designated Covid-19 positive unit at the nursing center - the North Hall - where Howard also resided. Howard was not tested for Covid-19 and remained in the North Hall, the suit states.
On Aug. 4, 2020, at 2:29 p.m., one of the nurses documented that Howard had a change in condition. She had allegedly not been feeling well, and her appetite was poor. Crisel alleges the nurse documented that Howard’s oxygen saturation was 94 percent on room air and went up to 95 percent with repositioning. The nurse allegedly failed to implement further monitoring for Covid-19 symptoms.
The suit states that Howard’s oxygen saturation later dropped to 80 percent, and she was running a fever of 101.5. She allegedly “complained of diarrhea, general malaise and was lethargic with poor skin turgor.”
In response to her condition, Howard was transferred to Gateway Regional Medical Center, where she was diagnosed with Covid-19, pneumonia and dehydration. She was moved to the ICU on Aug. 7, 2020, and died on Aug. 13, 2020. Her cause of death was listed as hypoxemic respiratory failure and novel coronavirus infection.
Crisel alleges the defendants failed to ensure the health and safety of Howard, failed to provide appropriate infectious disease precaution and infection control measurements, failed to ensure routine and prompt Covid-19 testing, failed to monitor vital signs, failed to recognize Covid-19 symptoms, failed to contact a physician for testing and treatment, failed to request further testing and failed to recognize Howard's change in condition.
She also claims the defendants failed to provide Howard with accommodations that were separate from residents who tested positive for Covid-19, failed to provide appropriate isolation precautions for residents and staff, failed to provide personal protective equipment and failed to provide appropriate housekeeping measures. They also allegedly failed to screen visitors and to adequately record and track Covid-19 testing.
U.S. District Court for the Southern District of Illinois case number 3:22-cv-685