Illinois Federal Court Allows COVID-19 Claims Against Nursing Home to Proceed in Recent Decisions
By Sean D. Hurley
On March 9, 2020, in response to the onset of the COVID-19 pandemic, and pursuant to the Illinois Emergency Management Agency Act (“EMAA”), 20 ILCS 3305/1 et seq., Illinois Governor J.B. Pritzker issued a proclamation declaring Illinois a disaster area and directing state agencies to coordinate their response to the virus. On April 1, 2020, Governor Pritzker issued Executive Order 2020-19 (“the Executive Order”), which directed health care facilities to “render assistance” in the State’s response to COVID-19. The Executive Order included a provision extending partial civil immunity to health care facilities for:
Any injury or death alleged to have been caused by an act or omission by the Health Care Facility, which injury or death occurred at a time when a Health Care Facility was engaged in the course of rendering assistance to the State by providing health care services in response to the COVID-19 outbreak, unless it is established that such injury or death was caused by gross negligence or willful misconduct of such Health Care Facility, if 20 ILCS 3305/15 is applicable, or by willful misconduct, if 20 ILCS 3305/21 is applicable.
In two recent opinions, the US District Court for the Northern District of Illinois in Claybon v. SSC Westchester Operating Company LLC and Brady v. SSC Westchester Operating Company LLC denied a nursing home’s motions to dismiss claims arising from three residents’ contraction of COVID-19. Claybon v. SSC Westchester Operating Company LLC, No. 20 CV 4507, 2021 WL 1222803 (N.D. Ill. Apr. 1, 2021); Brady v. SSC Westchester Operating Company LLC, Nos. 20 CV 4500 and 20 CV 4505, 2021 WL 1340806 (N.D. Ill. Apr. 9, 2021).
In Claybon, the independent administrator of the Estate of resident Carrie Claybon filed a lawsuit against Westchester Health and Rehabilitation Center, alleging violations of the Nursing Home Care Act (“NHCA”). Id. at *2. The Plaintiff asserted two separate NHCA claims against Westchester, a negligence claim and a claim for willful and wanton misconduct. Id. The Plaintiff alleges that, starting on or around March 9, 2020, several Westchester staff members began to show symptoms of COVID-19, with at least one staff member testing positive while another was hospitalized. Id. at *1. The Plaintiff further alleges that, despite its knowledge of this information, Westchester instructed symptomatic and infected staff members to report to work. Id. On March 16, resident Carrie Claybon informed her caregivers that she had developed a dry and unproductive cough, as well as shortness of breath. Id. Ms. Claybon developed a fever the following week, and then died a few days later. Id. Plaintiff alleges that the facility caused Ms. Claybon to contract COVID-19 by requiring symptomatic nurses to report to work, failing to provide personal protective equipment (“PPE”) to staff, and failing to implement COVID-19 guidelines issued by the Center for Medicare & Medicaid Services (“CMS”). Id. Meanwhile, in Brady, two additional suits were filed on behalf of nursing home residents against Westchester, asserting substantially similar allegations to Claybon regarding the deficiencies of Westchester’s COVID-19 response.
Westchester filed motions to dismiss the negligence counts and willful and wanton counts of each of the Plaintiffs’ Complaints in these three cases. With respect to the negligence counts, the facility argued that it is immune from liability under the Executive Order because the facility “rendered assistance” to the State by “attempt[ing]” to “increase the number of beds . . . preserve personal protective equipment, and . . . take [the] necessary steps to prepare to treat patients with COVID-19.” Claybon, 2021 WL 1222803, at *3. However, the Court found that whether the facility actually assisted the State in its COVID-19 response was a factual question that could not be resolved at the pleadings stage. Id.
In Claybon, the Court noted that, for the purposes of a motion to dismiss, all well-pleaded allegations are accepted as true, and the Plaintiff pled in her Complaint that Westchester did not render assistance to the State. Id. The Court further noted that the facility argued that it “attempted” to assist the State, thereby raising factual questions as to the scope, timing, and success of such “attempts.” Id. Meanwhile, in Brady, the Court noted that, because the applicability of an immunity defense depends on the facts of the case, “dismissal at the pleading stage on immunity grounds is usually inappropriate.” Brady, 2021 WL 1340806, at *5. The Brady Court found that issues of fact remained as to Westchester’s immunity under the Executive Order, noting that “[t]here’s a difference between allowing the virus to spread by taking no preventative measures, and spreading the virus while affirmatively treating it or trying to prevent spread. 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.” Id.
In addition to these factual questions, the Claybon Court noted that there was also a potential issue of retroactive applicability of the Executive Order. Id. Ms. Claybon passed away on March 30, 2020, and the Executive Order went into effect on April 1. The Court noted that, while the language of the Executive Order suggests that it may apply retroactively to when Governor Pritzker issued his first disaster proclamation on March 9, the Court would not decide that issue as neither party had addressed the issue in its briefing. Id.
As for the willful and wanton counts of the Plaintiffs’ Complaints, Westchester argued that the NHCA does not provide a cause of action for willful and wanton conduct. Id. at *4. The Claybon Court found this argument unavailing, noting that the NHCA’s definition of “neglect” includes “willful withholding” of care. Id. The Court noted further that “the Illinois Supreme Court has repeatedly recognized that common law punitive damages are available for ‘willful and wanton’ violations of the [NHCA]” Id. The Claybon Court also found that the Plaintiff’s allegations, including that the facility ordered infected and symptomatic employees to report to work without proper PPE after CMS had issued pandemic-related guidance specifically for nursing homes, were sufficient to support a claim for willful and wanton misconduct. Id. at *5. The Court recognized that the Plaintiff’s allegations may not be enough to prove that the facility engaged in willful misconduct, but, for the purposes of Westchester’s motion to dismiss, the Court found that the Plaintiff’s allegations were enough to “state a claim to relief that is plausible on its face.” Id. The Brady Court also found that the Plaintiffs had sufficiently pled a cause of action for willful and wanton misconduct under the NHCA to survive a motion to dismiss. Brady, 2021 WL 1340806, at *6.
On April 1, 2021, the Claybon Court issued its memorandum opinion and order denying Westchester’s motion to dismiss. On April 9, 2021, the Brady Court followed suit and denied Westchester’s motions to dismiss the NHCA claims in those two cases. In contrast to the Claybon and Brady decisions, in February 2021 a North Carolina state court dismissed a negligence claim asserted by the family of a nursing home resident, thereby upholding North Carolina’s COVID-19 liability protections for nursing homes. It is worth noting that Claybon and Brady are both federal court decisions discussing claims and defenses arising under Illinois law. It remains to be seen how Illinois state courts faced with nursing home claims arising during the COVID-19 pandemic will address the immunity afforded to facilities under the Executive Order and the EMAA. Additionally, while the Claybon and Brady Courts found that the immunity provided by the Executive Order did not serve as a bar to the Plaintiffs’ negligence claims at the pleadings stage, those Courts also left the door open for the facility to assert that immunity as a defense at a later date after further discovery. Claybon, 2021 WL 1222803, at *3 (“Because the Court cannot determine at this stage and on this record whether the Executive Order shields Westchester from liability . . . the motion as it relates to Count I is denied.”)
While these two decisions from the Illinois Federal Court are not binding on state courts that may be hearing similar arguments in other COVID-19 related nursing home cases, state court judges can certain look to the rationale articled in the by the Claybon and Brady Courts as persuasive. Consequently, Illinois nursing homes must anticipate that Governor Pritzker’s Executive Order will not bring these lawsuits to a swift end. Rather, facilities must prepare to defend these cases through at least the summary judgement stage, even if they are ultimately able to prevail on their immunity defense.