Bloomberg Law
Aug. 13, 2020, 1:57 PMUpdated: Aug. 13, 2020, 8:50 PM

N.J. Nursing Homes Face Covid-19 Death Claims in State Court (1)

Mary Anne Pazanowski
Mary Anne Pazanowski
Legal Reporter
Lydia Wheeler
Lydia Wheeler

Two New Jersey nursing care facilities must defend negligence and malpractice claims growing out of residents’ Covid-19 deaths in state court, a federal court in the state said.

The Health and Human Services Department published provisions of the Public Readiness and Emergency Preparedness Act in March that are intended to give caregivers immunity from liability for taking certain medical countermeasures in fighting the coronavirus pandemic.

But those provisions don’t completely preempt the state common-law claims such that they must be considered to belong exclusively in a federal forum, the U.S. District Court for the District of New Jersey said Wednesday.

Two Andover Subacute Rehabilitation Centers might have PREP Act defenses to claims brought by the dead residents’ estates, but that is for a state court to decide, Judge Kevin McNulty said. He limited his decision to the removal question and sent the case back to state court.

The ruling is the first major decision in a growing number of cases that test the scope of federal laws passed to shield nursing homes and other health-care providers from being held legally liable for the injury or death of a coronavirus patient.

The judge determined the PREP Act is not complete and exhaustive on the issue of immunity for health-care providers, said Linda Clark, partner and chair of the health-care controversies practice area in Barclay Damon LLP’s Albany, N.Y., office.

“It could have some influence and strengthen the position of the plaintiffs bar,” she said. “It may suggest to them there’s room for state court common law claims to fit alongside the immunities provided under the PREP Act.”

Room for Ordinary Claims

Joseph Maglioli, Dale Petry, Wanda Kaegi, and Stephen Blaine died of Covid-19 related infections at Andover facilities between April 9 and May 7. Their estates sued the centers and parent corporation Alliance Healthcare in state court, alleging the defendants were liable because they failed to take safety precautions to fight the spread of the coronavirus among their residents.

Andover removed the case to federal court, arguing the PREP Act provided it with a complete defense.

The court seemed doubtful the PREP Act gives Andover immunity, saying it protects caregivers for providing medical countermeasures such as as any “‘qualified pandemic or epidemic product"; a “security countermeasure"; a drug, biological, product, or device authorized by the Food, Drug, and Cosmetic Act for emergency use; or an approved respiratory protective device.

But the act, for example, probably wouldn’t immunize caregivers for doing nothing when that decision is inconsistent with reasonable medical judgment, the court said.

Federal and state immunity laws and executive orders have to tested both for constitutionality and also for scope of what applies and what doesn’t, said Michael Brevda, managing partner at the Senior Justice Law Firm, a boutique Florida-based firm focused on cases involving nursing home abuse, serious personal injury, and wrongful death.

“A lot of these executive orders and legislative immunity bills are unclear if the immunity is only for the caretakers, like the individuals themselves, or if it also applies to the companies, which employ those caretakers,” he said. “I think a lot of plaintiff lawyers are going to argue that immunity applies to individuals but not the nursing home company that employed them.”

As an attorney who represents nursing homes, Clark said she hopes the courts charged with interpreting these laws remember their purpose was to avoid the use of hindsight following an unprecedented pandemic.

“It was just a terrible situation with a lack of resources, PPE [personal protective equipment] and testing,” she said.

There are certain realities every facility had to face that were unprecedented and unique, but some of the worst performing nursing homes have posted the highest Covid-related deaths, Brevda said.

“It seems like the good facilities handled this as well as they could whereas the usual suspects have posted record-breaking Covid-related deaths and outbreaks,” he said. “That speaks volumes as to most of this carnage could have been prevented.”

McNulty said he believes the PREP “Act still leaves room for ordinary claims of negligent or substandard care,” such as those asserted by the estates.

Daniel Marchese, a principle at The Marchese Law Firm LLC who represents the estates, did not respond to a request for comment. S. Christopher Martino, an associate Lewis, Brisbois, Bisgaard & Smith LLP who represents Andover, did not respond to a request for comment either.

The case is Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, 2020 BL 305216, D.N.J., No. 20-cv-6605, 8/12/20.

(Updated with additional reporting throughout.)

To contact the reporters on this story: Mary Anne Pazanowski in Washington at; Lydia Wheeler in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Carmen Castro-Pagan at