Wednesday, June 23, 2021

23 June 2021: Should Nursing Homes Be Sued for Wrongful COVID Deaths in State or Federal Court?

Nursing Homes Fight Orders Sending Covid Death Suits to States

This report covers the legal question of which courts, state or federal, are the appropriate venues to consider COVID-19 related wrongful death cases. Legal arguments will begin today before the U.S. Third Circuit.

The Third Circuit Wednesday will become the first federal appeals court to hear oral arguments on whether state-law Covid 19-related wrongful death suits against nursing homes belong in state or federal court.

Similar appeals are pending in the Second, Fifth, Ninth, Eleventh, and District of Columbia circuits from federal district court opinions rejecting nursing homes’ arguments that the federal officer removal law gave them authority to hear the cases.

All but one of those courts also rejected arguments that the Public Readiness and Emergency Preparedness Act completely preempts state law in this area.

That issue probably will go to the U.S. Supreme Court, no matter which side wins, said Lori Semlies, head of the long-term care practice team at Wilson Elser Moskowitz Edelman & Dicker LLP, a national insurance defense firm.

In the case, the legal team representing nursing home operators will argue all these cases should be brought before federal courts, claiming they became extensions of federal agencies during the coronavirus pandemic.

That argument would seem to dismiss the role of state oversight and regulatory agencies, which had greater sway over the environment in which nursing homes in different states operated. We think that's particularly true in states that followed the Cuomo administration's policy of forcing nursing homes to admit patients known to have COVID-19 infections after they were discharged from hospitals seeking to free up the bed space they occupied. Four states adopted and sustained such a policy, including New York, New Jersey, Michigan, and Pennsylvania. California did as well, but rescinded it within a matter of days, which allowed it to avoid many of the deadly consequences.

Here's related coverage from the timeline:

The latter two entries from the timeline would appear to provide evidence that directly contradicts the argument being advanced by the nursing home operators seeking refuge in federal court. Nursing home operators very much remained under the thumb of state regulators.

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