A federal court has ruled protections put in place during the pandemic do not give immunity to assisted living communities in COVID-19 wrongful death cases, and remanded a Florida case to the state court where it originated.
The US Court of Appeals for the Eleventh Circuit delivered a 2-1 split decision last week in a case involving healthcare provider protections implemented under the Public Readiness and Emergency Preparedness, or PREP, Act.
The PREP Act offered liability protection to healthcare providers when prioritizing distribution of countermeasures — including COVID-19 vaccines — especially if done in accordance with public health guidelines. The court’s dissenting opinion said the case fell squarely under the PREP Act.
“Given the strong dissent included in the opinion, we are assessing our options with our legal counsel, and until we have completed our assessment we won’t be able to offer any comments,” Sandi Poreda, a spokeswoman for the community involved, Grand Villa, told McKnight’s Senior Living.
Sara Schleider, a resident of Grand Villa of Delray Beach East, died of COVID in June 2020. Her family filed a lawsuit in Florida state court alleging that Grand Villa’s failure to provide personal protective equipment or take other protection measures to prevent the spread of COVID-19 results in Schleider’s death. The lawsuit named Grand Villa’s operating and management companies, GVDB Operations LLC and JSMGV Management Company LLC.
Grand Villa moved the case to US District Court for the Southern District of Florida, claiming it was acting under the direction of a federal officer as part of the “critical healthcare infrastructure.” The provider also argued that it had immunity protections under the PREP Act.
But the district court rejected Grand Villa’s immunity arguments and remanded the case to state court, prompting an appeal to the 11th Circuit Court. The appellate court agreed with the district court, finding that compliance with federal guidelines did not equate to acting under federal authority, particularly if those guidelines were not followed. The appellate court also found that the PREP Act did not completely provide immunity and preempt state law claims for negligence.
Other PREP Act cases
Earlier this month, a Nevada state court ruled that the PREP Act “does not apply to a lack of action or treatment and therefore petitioners are not immune under it from claims based on a failure to enact COVID-19 policies.” The decision aligned with federal court decisions around the country.
Several cases have challenged immunity protections for senior living providers under the PREP Act, which preempts state law liability claims. Most states that passed legislation related to COVID-19 tied liability protections to the duration of the public health emergency declared by a state, rather than the federal government. The 9th District Court in 2023 remanded almost two dozen COVID cases involving long-term care facilities to state courts, following the Supreme Court’s refusal to hear a case that could have determined whether such lawsuits should be heard by federal or state juries.
The Florida Agency for Health Care Administration previously accused Grand Villa of Delray East of deficiencies in the areas of staffing, training and dining services, as well as neglect related to two resident deaths. Facing the loss of its license, the owners negotiated with state regulators in 2015 to sell the company and pay a $47,000 fine, although ties between the new and former owners at the time were questioned.
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