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Nursing Home Patients Sue Pennsylvania for Covid-19 Exposure (1)

April 28, 2020, 5:01 PM; Updated: April 28, 2020, 6:31 PM

A group of residents is claiming a Pennsylvania long-term care facility is conducting unauthorized medical experiments on its residents in its attempts to treat Covid-19.

The claims are part of a Tuesday lawsuit against the Pennsylvania Department of Health over polices and practices that allegedly are allowing Covid-19, the disease caused by the coronavirus, to run rampant through the facilities.

Health department inspections of these facilities “have come nearly to a halt,” thereby endangering the facilities’ already medically fragile and disabled residents, a complaint filed in the U.S. District Court for the Eastern District of Pennsylvania says.

The department’s failure to inspect the facilities as required by federal programs such as Medicare and Medicaid also has allowed them to conduct unauthorized experiments on residents in violation of international law, the complaint says.

The experiments are in the form of clinical trials to determine if taking the drug hydroxychloroquine in conjunction with a zinc tablet will prevent people from being infected with Covid-19, the complaint says.

Residents were given a “consent for post exposure prophylaxis” form, but the would-be class plaintiffs say “there is no evidence that this ‘study’ was approved by an Institutional Review Board, or that a Data Safety Monitoring Board was engaged, or that any kind of actual informed consent was sought or given.”

Hydroxychloroquine is an antimalarial drug initially touted by President Donald Trump as a possible treatment for Covid-19. The federal Food and Drug Administration is now cautioning against its use.

The named plaintiff in the suit is the daughter of a resident of Brighton Rehabilitation and Wellness Center in Beaver, Pa.

Causes of Action: Violations of the Rehabilitation Act, the Americans with Disabilities Act, the Affordable Care Act, the Social Security Act, the Federal Nursing Home Reform Amendments, Pennsylvania Disease Prevention and Control Law, and the Nuremberg Code.

Relief: Declaratory judgment and injunctive relief requiring department to immediately conduct appropriate inspections, test residents for Covid-19, record and report test results to residents and their families, take steps to prevent further infections, and stop clinical trials; costs and attorneys’ fees.

Response: The complaint hasn’t yet been referred to the Pennsylvania Attorney General’s Office, press secretary Mark Shade told Bloomberg Law. The health department can’t comment on litigation, DOH Press Secretary Nate Wardle said.

Attorneys: Shrager & Sachs; Kanter, Bernstein & Kardon PC; Massa Butler Giglione; and Robert Peirce & Associates PC represent the proposed class.

For additional legal resources, visit Bloomberg Law In Focus: Coronavirus (Bloomberg Law Subscription).

The case is Gill v. Pa. Dep’t of Health, E.D. Pa., No. 2:20-cv-2038, filed 4/28/20.

(Updated with additional details on the allegations.)

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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