A ruling by the 3rd U.S. Circuit Court of Appeals last week against two nursing homes in New Jersey is the first step in determining how COVID-19 cases will be handled by courts, lawyers say.
In the ruling, the Philadelphia-based 3rd Circuit determined that negligence and wrongful death cases like those alleged against the Andover Subacute & Rehabilitation I & II nursing homes should be handled by the states and are not covered by the Public Readiness and Emergency Preparedness Act, known as the PREP Act, which offers immunity to liability for COVID-19 countermeasures.
"The pandemic has tested our federal system, but this case confirms its resilience. The defendants invite us to assert the 'judicial power of the United States' over a matter that belongs to the states," the ruling reads.
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Rachel Stahle, a nursing home abuse and neglect attorney and a partner at Dollar Burns & Becker, a law firm based in Kansas City, Mo., said the ruling is "a step in the right direction for plaintiffs."
"Countrywide, I think there are numerous cases on appeal where courts were waiting on this 3rd Circuit opinion before issuing their own opinions," Stahle said. "I think it's just another notch in the belt to show this is not a winning argument."
Of the many wrongful death and negligence cases filed against nursing homes, only a few courts have determined that the PREP Act applies, she said.
Drew Graham, an attorney in the New York office of Hall Booth Smith who leads the firm's aging services and post-acute practice group, said the 3rd Circuit ruling is only the first step in how the PREP Act will be interpreted, noting that other circuits could have differing opinions.
"Several circuits all will have these cases on appeal. Ultimately, it could be a split of cases," Graham said.
In that case, the U.S. Supreme Court could decide to take up the issue, he said.
Graham said it's important to remember that while the 3rd Circuit's decision focused on nursing homes, that PREP Act jurisdiction rulings affect all healthcare providers.
"While nursing homes and post-acute providers are seeing this first, that's because those claims were filed first," Graham said. "It's not just a nursing home issue."
Because by nature the PREP Act is so infrequently used, courts are still deciding how it will be interpreted, Graham said, calling the 3rd Circuit's opinion "progress" on clarifying it.
Stahle said she expects to see other courts follow the 3rd Circuit's lead.
"It just sends a message to the nursing homes 'you're going to have to work these cases, fight these cases in another way. You're not just going to get blanket immunity,'" Stahle said.
