A senior living provider being sued over the COVID-19 deaths of a former resident couple maintains that it is covered by federal immunity protections for healthcare workers and that the lawsuit should move to federal court.
Linda Barron filed a wrongful death lawsuit June 28 in Rockingham County Superior Court against Greystone Farm at Salem, a Salem, NH, assisted living and memory care community owned by Benchmark Senior Living. The suit alleges that the community’s “negligent administration and use of COVID-19 countermeasures” and decision-making led to the deaths of her parents, Leo and Anna Barron.
Benchmark cited the Public Readiness and Emergency Preparedness, or PREP, Act in its argument. The PREP Act provides immunity from federal and state legal claims relating to the administration of certain medical countermeasures during a declared public health emergency. The act limits lawsuits against covered persons who administer covered countermeasures, including drugs or medical devices, to treat disease.
A spokesman for Benchmark told McKnight’s Senior Living that the “well-being of all our residents has been and remains the highest priority at Greystone Farm.”
“Throughout the COVID-19 pandemic, Greystone Farm has administered a program dedicated to mitigating the spread of COVID-19, including the implementation of guidance from state and federal agencies related to personal protective equipment and infection control,” Benchmark spokesman David Levesque said. “Out of respect for the privacy interests of our residents and their families, we do not comment on pending litigation.”
The Barrons, who were living with dementia, moved to Greystone Farms in 2018. They died within three day of each other in May 2020 after both tested positive for COVID-19.
The lawsuit alleges that Greystone Farm “routinely and negligently” administered care to the Barrons and interacted with the couple without using required personal protective equipment. The suit also alleges that the community used a nebulizer machine without properly disinfecting it and allowed residents to be in community areas without face masks or social distancing in violation of Centers for Disease Control and Prevention infection prevention and control protocols and its own internal policies.
According to the complaint, the Barrons “suffered severe pain, anxiety, mental distress and death.”
Monday, Benchmark’s attorney filed a motion with the US District Court in Concord, NH, arguing that the litigation should be moved to a federal court. Benchmark said that the state negligence laws were exempted under the 2005 PREP Act, which grants immunity in times of emergency to frontline workers and other entities deploying approved countermeasures.
Benchmark argued that because the company was acting under federal authority — namely, CDC and Centers for Medicare & Medicaid Services guidelines — it is covered by the PREP Act.
In April 2020, New Hampshire Attorney General Gordon MacDonald issued an opinion that assisted living communities — as well as other long-term care and healthcare facilities — were performing “emergency management activities” in following state of emergency orders, rules and waivers in response to COVID-19. As a result, the attorney general said, immunity provisions apply to those facilities as well as to their employees and volunteers.
In 2021, New Hampshire codified that opinion into law, protecting healthcare facilities from liability in the death or injury of someone as a result of compliance “or reasonable attempts to comply” with an emergency order or rule in response to COVID-19.