Elder Neglect Claims Against Long-Term Care Facilities

California Attorneys Representing Elder Neglect and Covid-19 Victims in Long-Term Care Facilities

Courts in California and beyond have concluded overwhelmingly that the PREP Act does not provide immunity from liability for claims based on a long-term care facility’s plain inaction or failure to protect residents, such as failing to implement an effective policy for isolating proven or suspected carriers of COVID-19, failing to notify residents of COVID-19 exposure, and failing to properly implement COVID-19 testing.

In our experience, residents with claims regarding COVID-19 have had other signs of neglect including:

  • Bedsores
  • Malnutrition
  • Dehydration
  • Frequent Falls

This type of neglect often occurs when long-term care facilities systematically withhold care and chronically fail to maintain sufficient staffing levels in order to maximize profits and increase revenue.

With proper care, a sufficient infection control policy, and adequate staffing and staff training, these facilities can successfully prevent or curb the spread of COVID-19 among their residents.

(415) 534-1911 Call now to review your case with our Elder Neglect intake specialist. During this call, our intake specialist will review your claim regarding an Elder Neglect Lawsuit.

What Happened?

The Public Readiness and Emergency Preparedness Act (“PREP Act”) was enacted in 2005 to protect vaccine manufacturers from financial risk in the event of a declared public health emergency. The plain language of the PREP Act indicates that it only provides immunity for liability “with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a Covered Countermeasure.”

Nonetheless, on February 10, 2021, a California court ruled in Garcia v. Welltower OpCo Group LLC, 2021 WL 492581 (C.D. Cal. Feb. 10, 2021) that an assisted living community had complete immunity from suit for COVID-19 related claims of wrongful death, elder abuse, and neglect, under the PREP Act, giving deference to a January 8, 2021 Advisory Opinion issued by the Office of General Counsel of the Department of Health and Human Services.

Since this ruling, courts have unanimously disagreed with the Garcia court.

If you or a loved one has been affected by COVID-19 and neglected in a long-term care facility, contact Potter Handy Law Firm to have your case reviewed at no cost.

At Potter Handy Law Firm, Our Elder Law Attorney is ready to fight for your rights, you may be entitled to compensation. Call now (415) 534-1911 or contact us using the web form on this page.

The Conclusion

The fact that the PREP Act was not intended to provide general immunity for medical malpractice and neglect is further evidenced by the Covered Countermeasures Injury Compensation Program (“CICP”), which Congress created as part of the PREP Act.

The CICP program only provides a remedy to plaintiffs who claim that they: 1) received or used a “covered countermeasure,” and 2) the “covered countermeasure” directly caused the recipient serious bodily injury or death.

Therefore, a plaintiff claiming that serious bodily injury or death was caused by a facility’s failure to act cannot claim compensation under the CICP; thus, the plaintiff has no remedy under the PREP Act.

The defense’s strategy for claims against long-term care facilities related to COVID-19 has been to remove these cases to federal court and file a motion to dismiss the claims. Aside from the sole ruling by the Garcia court, this strategy has been unsuccessful.

Recent opinions granting plaintiffs’ motions to remand these cases back to state court include but are not limited to:

  • Golbad v. GHC of Canoga Park dba Canyon Oaks Nursing and Rehabilitation Center, 2021 WL 1753624 (C.D. Cal. May 4, 2021);
  • Bolton v. Gallatin Ctr. for Rehab. & Healing, LLC, 2021 WL 1561306, (M.D. Tenn. Apr. 21, 2021)
  • Padilla v. Brookfield Healthcare Ctr., 2021 WL 1549689 (C.D. Cal. Apr. 19, 2021)
  • Hopman v. Sunrise Villa Culver City, 2021 WL 1529964 (C.D. Cal. Apr. 16, 2021)
  • Crystal Perez, v. Southeast SNF LLC, 2021 WL 1381232 (W.D. Tex. Apr. 12, 2021)
  • Winn v. California Post Acute LLC, 2021 WL 1292507 (C.D. Cal. Apr. 6, 2021)
  • Nava v. Parkwest Rehabilitation Center LLC, a California corporation, 2021 WL 1253577 (C.D. Cal. Apr. 5, 2021)
  • Mitchell v. Advanced Hcs, LLC, 2021 WL 1247884 (N.D. Tex. Apr. 5, 2021)
  • Schuster v. Percheron Healthcare, Inc., 493 F. Supp. 3d 533 (N.D. Tex. 2021 April 1, 2021)
  • Est. of Cowan v. LP Columbia KY, LLC, 2021 WL 1225965 (W.D. Ky. Mar. 31, 2021)
  • Maltbia, v. Big Blue Healthcare, Inc, d/b/a Riverbend Post-Acute Rehabilitation & Ryan Leiker, 2021 WL 1196445 (D. Kan. Mar. 30, 2021)
  • Wright, v. Encompass Health Rehabilitation Hospital of Columbia, Inc., 2021 WL 1177440 (D.S.C. Mar. 29, 2021)
  • Stone v. Long Beach Healthcare Ctr., LLC, 2021 WL 1163572 (C.D. Cal. Mar. 26, 2021)
  • Ivey v. Serrano Post Acute, LLC, 2021 WL 1139741 (C.D. Cal. Mar. 25, 2021)
  • Lopez v. Life Care Centers of Am., Inc., 2021 WL 1121034, (D.N.M. Mar. 24, 2021)
  • Smith v. Colonial Care Ctr., Inc., 2021 WL 1087284 (C.D. Cal. Mar. 19, 2021)
  • Est. of Jones through Brown v. St. Jude Operating Co., LLC, 2021 WL 900672, (D. Or. Feb. 16, 2021), report and recommendation adopted sub nom. Est. of Jones v. St. Jude Operating Co., LLC, 2021 WL 886217 (D. Or. Mar. 8, 2021)
  • Est. of McCalebb v. AG Lynwood, LLC, 2021 WL 911951 (C.D. Cal. Mar. 1, 2021)
  • Robertson v. Big Blue Healthcare, Inc., 2021 WL 764566 (D. Kan. Feb. 26, 2021)
  • Saunders v. Big Blue Healthcare, Inc., 2021 WL 764567 (D. Kan. Feb. 26, 2021)
  • Lyons v. Cucumber Holdings, LLC, 2021 WL 364640 (C.D. Cal. 2021 Feb. 3, 2021)
  • Dupervil v. All. Health Operations, LCC, No. 20CV4042PKCPK, 2021 WL 355137 (E.D.N.Y. Feb. 2, 2021)
  • Goldblatt v. HCP Prairie Village KS OPCO LLC, 2021 WL 308158 (D. Kan. 2021)
  • Anson v. HCP Prairie Village KS OPCO LLC, 2021 WL 308156 (D. Kan. 2021)
  • Grohmann v. HCP Prairie Village KS OPCO LLC, 2021 WL 308550 (D. Kan. 2021)
  • Estate of Smith v. Bristol at Tampa Rehab. & Nursing Ctr., LLC, 2021 WL 100376 (M.D. Fla. 2021)
  • Parker v. St. Jude Operating Co., LLC, 2020 WL 8362407 (D. Or. 2020); · Gunter v. CCRC Opco-Freedom Square, LLC, 2020 WL 8461513 (M.D. Fla. 2020)
  • Sherod v. Comprehensive Healthcare Mgmt. Servs., LLC, 2020 WL 6140474 (W.D. Pa. 2020)
  • Saldana v. Glenhaven Healthcare LLC, 2020 WL 6713995 (C.D. Cal. 2020)
  • Martin v. Serrano Post Acute LLC, 2020 WL 5422949 (C.D. Cal. 2020); and · Haro v. Kaiser Found. Hosps., 2020 WL 5291014 (C.D. Cal. 2020)

While many of these cases have been or will be appealed, the overwhelming majority of district courts (all but one) have ruled that the PREP Act does not provide immunity for a long-term care facilities’ failure to act, neglect and medical malpractice, and/or that there is no basis for removing COVID-19 claims to federal court.

(415) 534-1911 Call now to review your case with our Elder Neglect intake specialist. During this call, our intake specialist will review your claim regarding an Elder Neglect Lawsuit.