The daughter of an elderly couple who died of Covid filed a wrongful death lawsuit against a Salem assisted living facility, but on Monday the facility claimed it was immune from prosecution due to a federal law designed to protect frontline workers in the event of an emergency.
The facility’s legal strategy is being used nationwide to protect aged care centers from Covid-related lawsuits, but while being somewhat backed by the federal Department of Health and Human Services, the Federal courts have mostly dismissed it.
Linda Barron filed her lawsuit June 28 in Rockingham County Superior Court against Greystone Farm in Salem — owned by Benchmark Senior Living LLC, based in Waltham, Mass. – on behalf of the estates of his late parents, Leo and Anna Barron, who were both admitted to the facility in 2018. The couple, according to multiple reports following their deaths which occurred less than three days one of the another, suffered from dementia around the same time, after nearly 60 years of marriage and after some 25 years of ballroom dancing.
“They declined together, but their love showed through,” Linda Barron told WMUR-TV at the time.
Leo Barron tested positive for Covid-19 in April 2020 and his wife the following month, according to the report.
They were transferred to Parkland Medical Center in Derry, where they shared a room and with the help of Merrimack Valley Hospice, moved to High Point, the first hospice in Massachusetts to open a special unit for patients. Covid, holding hands during transport. , according to an article in the Lawrence Eagle-Tribune.
Leo Barron died on May 29. Anna Barron died on May 31, holding one of her husband’s shirts on what would have been his 85th birthday, the Eagle Tribune report said.
Their daughter praised her parents’ care at Parkland and High Pointe in these articles and another by the head of the NH union, but she did not mention their Greystone residence in any of the reports.
His lawsuit, filed by Ryan Russman, an Exeter solicitor, accused the assisted establishment of “regularly [emphasis in the filing] and negligently cared for Leo and Anna Barron, interacted with them, and entered their room without using required PPE, if any. They allegedly used a nebulizer (a vaporizer breathing device with a mouthpiece) without properly disinfecting it and allowed residents to be in community areas without face masks or social distancing, in violation of federal protocols or their own internal policies. .
There was no Covid outbreak at the facility at the time, according to the state Department of Health and Human Services‘ lists of such incidents, but it is unclear whether they were all reported at the time.
Greystone has suffered three Covid outbreaks – in June 2020 nine residents and three staff were affected; in January 2021, two patients and seven staff were affected; and in February 2022, 11 patients and seven staff were affected. None resulted in fatalities, according to the listings.
When contacted about the lawsuit, the person who answered Greystone’s phone said, “No comment,” declined to identify themselves, and hung up. Joseph Desmond of Morrison Mahoney, a Boston law firm with an office in Manchester, the company’s attorney, did not respond to a timely telephone request.
On Monday, Desmond filed a petition in the U.S. District Court in Concord, arguing that the litigation would be moved to federal court. He argued that state negligence laws were completely exempt because of the Public Preparedness and Emergency Preparedness (PREP) Act of 2005, a 2005 law that grants immunity in case emergency response to frontline workers and other entities deploying approved countermeasures.
“The PREP Act also expressly prevents any claim filed in state court for negligence or violation of state law arising from the administration or use of covered countermeasures through
the creation of an exclusive federal cause of action,” Desmond wrote in the filing
Instead, all claims would go to a congressional no-fault compensation program similar to workers’ compensation.
The benchmark is covered, the filing says, because it is a “program planner” specified in the law. Because the chain was operating under federal authority, it is covered by the law, which “provides broad immunity to covered individuals, such as frontline healthcare workers and other entities that deploy countermeasures. approved…so that they can combat the emergency without fear of further litigation and expressly prevents such claims,” the company argues.
This is not the first time that such a defense has been attempted. According to Bill of Health, a Harvard Law School website, it’s a common litigation strategy “attempting to redirect state tort lawsuits to federal court,” the court said. article, which was written last November. Just a month earlier, a US 3rd Circuit Court of Appeals in Philadelphia had dismissed the strategy, ruling that the countermeasures covered meant the application of safeguards such as vaccine ventilators and PPE, not the fact not to use them. He referred the lawsuit against a New Jersey nursing home to state court. A more recent decision from the San Francisco 9th Circuit was accepted.
The article goes on to say that the issue is moot in many states because so many laws have been passed or have issued executive orders granting immunity from Covid-related lawsuits, making it extremely difficult to win such cases. . This is not the case in New Hampshire, where the legislature rejected a bill to grant such protection to businesses, despite a strong lobbying effort by the Business & Industry Association of New Hampshire. At the time, no such case had been filed in the state. Since then, however, NH Business Review has reported at least three such lawsuits.