A COVID-19 wrongful death lawsuit against a Pennsylvania assisted living community can move forward in state court after a district court denied a federal immunity protection argument to move the case to federal court.
The estate of Clara Troilo, a former resident of Rose Tree Place in Media, PA, filed suit against Executive Director Cynthia Evans, operator Watermark Retirement Communities and Watermark Chief Operating Officer Karen Mlawsky after Troilo died on April 29, 2020, after contracting COVID-19.
The claim alleged that the community did not alert residents and families of positive COVID-19 cases in the building. The lawsuit further claimed that the community tried to “conceal, hide, mask and cover-up the deadly presence of COVID-19” in the building through “false, deceptive, fraudulent and deceitful statements” that gave families a false sense of security.
Rose Tree Place and Watermark argued that the case should be moved to federal court due to protections provided under the Public Readiness and Emergency Preparedness Act, which gives immunity from claims related to the administration of covered countermeasures by certain covered persons during the COVID-19 public health emergency.
Assisted living providers that used countermeasures — including COVID-19 tests — made available through emergency use authorizations could receive liability protection under the PREP Act that preempts state law liability claims. Several cases winding their way through the courts, however, are challenging those protections.
The US District Court for the Eastern District of Pennsylvania remanded the case back to the Philadelphia Court of Common Pleas in February, finding no basis for federal jurisdiction over the case. Rose Tree Place and Watermark appealed the decision to the 3rd Circuit Court of Appeals and asked the district court to stay its order until the appeal is resolved.
Wednesday, the district court denied the motion to stay, allowing the case to proceed in state court.
Creating a ‘false sense of security’
The lawsuit claimed that in March and April 2020, Rose Tree Place notified residents and families of service and policy changes and “COVID issues,” but did not disclose positive test results. The lawsuit points to an April 9, 2020, email from the community to family members stating that no positive COVID-19 test results had been reported at the facility.
Troilo’s estate contends that this statement and others were false and misleading and that the community was aware of positive COVID-19 cases among residents as early as February 2020 but did not inform residents and families of those cases until April 22, 2020. Those statements, the estate claimed, lulled the Troilo family into a false sense of security and “deprived them of the ability to make proper and informed decisions regarding her care.”
The lawsuit alleged claims of fraud, negligent misrepresentation, wrongful death, violations of consumer protection law, breach of contract and a survival action.
Rose Tree Place argued that the claims fell under the federal PREP Act and, therefore, the suit should be heard in federal court. The provider further argued that then-US Health and Human Services Secretary Alex Azar in 2020 stated that allegations of a death arising from or related to the administration of COVID-19 tests — including the use of that test result information to isolate and treat residents, or otherwise manage and operate a COVID-19 countermeasure program — as well as the use of a countermeasure program notifications, were covered under the PREP Act.
The district court sided with the Troilo estate in finding that Rose Tree Place and Watermark “mischaracterized” the issue on appeal. The court found that the conduct alleged in the claim is the act of deliberately misinforming residents and families about test results, not the use of that test result information to isolate and treat residents or the failure to provide timely disclosure of such results.
Watermark Retirement Communities told McKnight’s Senior Living it had no information to share on the case at this time.
