CHICAGO — A federal judge has refused to dismiss a lawsuit accusing a nursing home of being liable for several residents’ COVID deaths, saying an executive order from Gov. JB Pritzker shielding nursing homes may not be enough to allow the nursing home to escape the lawsuit.
Westchester Health and Rehabilitation Center residents Lottie Smith and Rita Saunders each contracted coronavirus in March 2020. Saunders eventually died. Smith’s daughter, Loretta Brady, and Saunders’ sister, Eileen Walsh, sued SSC Westchester Operating Company, alleging it violated the Illinois Nursing Home Care Act because it knowingly exposed residents to staff who either displayed symptoms or tested positive for COVID-19. They also said the nursing home failed to provide personal protective equipment to staff.
In an opinion filed April 9, Judge Manish Shah denied Westchester’s motion to dismiss the complaint.
According to Shah, the Illinois Department of Public Health cited the facility 10 times for violating infection control procedures from 2011 to 2019. In addition to COVID concerns, Smith’s allegations also detail injuries her mother sustained from falls in late 2018 and a February 2019 ulcer she attributed to a lack of adequate care.
The court record also details allegations about the early days of the pandemic and positive tests among staff members. The complaint alleged Westchester told employees who had tested positive to keep working and fired one who stayed home because they felt ill. The complaint further asserts Westchester denied Saunders a COVID test on March 20, three days before she was hospitalized with acute hypoxia and respiratory failure, which led to her death a week later.
“By March 27, at least 26 residents of the home had tested positive,” Shah wrote. “By April 19, 43 residents had tested positive, and nine residents had died. By June 21, 44 residents had contracted COVID-19 and 12 had died.”
Brady also alleged nursing staff allowed her mother to fall five times in April and May in hopes of leading to her discharge, and that in June the administrator took issue with Brady’s complaints to her mother, other residents, IDPH and news media.
Shah said Brady’s allegations of how Westchester staff were negligent in caring for her mother are sufficient to avoid dismissal aside from the COVID conditions, and further said both plaintiffs “plausibly alleged that Westchester was negligent in its care for residents through its handling of COVID-19.”
In arguing for dismissal, Westchester didn’t challenge the negligence allegations, saying only it should be shielded from liability because of Pritzker’s executive orders concerning pandemic mitigation. Those orders were issued under the Emergency Management Agency Act, Westchester argued, under which it and other health care facilities “shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission by” the facility, so long as the incident occurred while the facility was “rendering assistance to the state by providing health care services in response to the COVID-19 outbreak.”
Shah said immunity defenses typically aren’t appropriate arguments for dismissal while a case is in the pleadings stage and noted the need to resolve factual disputes.
“There’s a difference between allowing the virus to spread by taking no (preventive) measures, and spreading the virus while affirmatively treating it or trying to prevent spread,” Shah wrote. “Only the latter is immunized, and it’s not clear from the complaints that the staff infected the residents in the course of providing COVID-related treatment — it’s just as reasonable of an inference that transmission occurred during routine, non-COVID-related care.”
Furthermore, Shah rejected dismissal because the claims plausibly allege willful misconduct. He said the plaintiffs’ timeline establishes Westchester “was on notice” about how quickly COVID can spread in a communal living facility without precautions and the complaint adequately alleged “Westchester consciously disregarded the risk to its residents when it knowingly exposed them to infected staff members who had no personal protective equipment.”
Westchester also moved to strike several portions of the allegations, but Shah said “only three paragraphs in each complaint are so obviously irrelevant and immaterial that they must be stricken.”
Shah gave Westchester until May 20 to answer the plaintiffs and requested a status report regarding consolidation with a similar complaint against the facility by April 19.
The families of the deceased nursing home residents are represented in the action by attorneys Bryan A. Ruggiero and Michae F. Bonamarte IV, of the firm of Levin & Perconti, of Chicago.
Westchester is represented by attorneys Terrence S. Carden III, Rebecca Coen Barnard and Todd M. Porter, of the firm of Carden & Tracy, of Chicago.