A state appeals panel has determined one of Gov. JB Pritzker’s 2020 executive orders can shield nursing homes from lawsuits bringing “ordinary negligence” claim from incidents occurring during the time the order was in effect.
The Illinois Second District Appellate Court answered a certified question stemming from several consolidated wrongful death lawsuits filed against Geneva Nursing and Rehabilitation Center, which operates as Briar Health Services of Geneva, on behalf of people who died of Covid complications in the spring of 2020.
Kane County Circuit Court Judge Susan Boles asked the panel to determine whether Executive Order 2020-19 — issued April 1, 2020 — gives nursing homes immunity from lawsuits alleging negligence and a willful failure to control the spread of Covid inside their facilities.
Justice Susan Hutchinson wrote the panel’s opinion, issued Aug. 17; Justices Ann Jorgensen and Joseph Birkett concurred.
“The complaints generally alleged that the decedents contracted Covid-19 from Briar's failure to quarantine symptomatic staff members and residents adequately and its failure to implement effective procedures for maintaining hygiene and equipment, including personal protective equipment such as masks and gowns, thereby exposing decedents to the virus during this period,” Hutchinson wrote. “The complaints alleged that this was a breach of the nursing home’s duty of care, which proximately caused the decedents’ deaths.”
The panel said Pritzker issued the order under the Emergency Management Act, extending typical government tort immunity to health care facilities, including nursing homes, that gave advice or assistance at the state’s request, then reissued the order 30 days later. Although Pritzker “reissued his same executive order several times during the pandemic,” Hutchinson wrote, the appeal was “concerned only with the first two.”
According to the order, a plaintiff could only sue such a facility if it adequately alleged willful misconduct contributing to an injury or death associated with Covid. Judge Boles initially dismissed Briar’s motion to dismiss the complaint but later vacated that denial, after which Briar submitted its question for certification. In addition to agreeing to answer the question, the panel allowed the Illinois Trial Lawyers Association to submit briefs and also accepted a briefing from the state attorney general’s office regarding the applicable law.
“The certified question, as presented, misstates the relevant issues in this case,” Hutchinson wrote.
While the estates of the decedents wanted a declaration asserting Pritzker didn’t have the authority to even issue the order, Briar wanted it to affirm a grant of near blanket immunity. The ITLA wanted a declaration “Briar could be immune only for acts directly connected to measures implemented in response to the pandemic,” Hutchinson wrote.
“None of these results is tenable, and except for the Attorney General, all parties indirectly suggest that we review the trial court’s order initially denying Briar’s motion to dismiss the negligence counts — an order that was subsequently vacated," Hutchinson wrote.
Hutchinson said it would be “a bridge too far” to determine Briar could be immune from both negligence and willful misconduct claims. The panel also noted the potential for immunity comes from the Emergency Management law itself, not the executive order invoking that law, and so it modified the certified question to remove the reference to willful misconduct.
“As the Attorney General points out, all Executive Order No. 2020-19 did was invoke the governor’s authority to declare a public health emergency, triggering the preexisting, potential statutory immunity for health care facilities under the act," Hutchinson wrote.
Although the law doesn’t define “rendering assistance,” the panel continued, Pritzker’s order said it “must include measures such as increasing the number of beds, preserving personal protective equipment or taking necessary steps to prepare to treat patients with Covid-19.” The panel found no ambiguity in the Emergency Management Act, and said if Briar can show it was helping the state, that showing would trigger immunity.
However, the panel also noted the question of whether a facility meets the standard “is apt to be a fact-bound question not easily disposed of through preliminary pleadings and process,” Hutchinson wrote. “As with more challenging immunity questions, like this one, the trial court will be in the best position to evaluate the quantum of evidence necessary to determine whether a given defendant qualifies for the statutory immunity at issue.”
The consolidated lawsuits were returned to Kane County Circuit Court for further proceedings.
Plaintiffs were represented in the case by attorneys Margaret P. Battersby and Gabriel J. Apprati, of Levin & Perconti, of Chicago, and Michael W. Lenert and Christopher J. Warmbold, of Myers & Flowers, of St. Charles.
Briar was represented by attorneys Anne M. Oldenburg and LaDonna L. Boeckman, of HeplerBroom LLC; Robert Marc Chemers and David N. Larson, of Pretzel & Stouffer; and Mark D. Rosen, of IIT Chicago-Kent College of Law, all of Chicago.