Brighton Rehab claims it is immune from lawsuit in federal court filing

Attorneys for a Beaver County nursing home where more than 70 residents died of covid-19 claim it has immunity from civil liability — even as a judge in the same jurisdiction has previously said, in a separate case, it does not.

In a motion to dismiss filed Monday in federal court, attorneys for Brighton Rehabilitation and Wellness Center wrote that they cannot be sued because of the federal Public Readiness and Emergency Preparedness Act.

Under the act, the attorneys told U.S. District Judge Cathy Bissoon, health care providers fighting the novel coronavirus are protected from lawsuits “that second-guess the manner in which they have administered countermeasures during this national public health emergency.”

“The policy reasons for this protection are clear — the act is intended to protect those who must make the hard choices during an extreme shortage of supplies,” Brighton’s attorneys wrote. “Otherwise, providers could choose to close their doors to avoid the risk of going out of business due to liability.”

The Public Readiness and Emergency Preparedness Act was enacted in December 2005, the filing said, but is dormant until invoked during a public health emergency, as happened during the pandemic.

“By using the mandatory language, ‘shall be immune from suit and liability under federal and state law,’ the objective of immunity could not be clearer,” Brighton’s attorneys wrote. “In drafting the statute, the obvious concern was that if there is potential liability for health care providers and employers for the resources and countermeasures they used, such critical resources would simply shut down rather than expose themselves to endless lawsuits stemming from the response to an ever-changing infectious disease pandemic.”

Fifteen individuals who lived at Brighton — or family members of those who died — sued Brighton in Beaver County Common Pleas Court in October. The suit was moved to federal court a month later and includes claims for corporate negligence, vicarious negligence and wrongful death.

The plaintiffs allege that Brighton failed to stop the spread of the virus in the nursing home — including by how officials there administered and allocated personal protective equipment, testing supplies and infection control measures.

That lawsuit is separate from one filed by the administrator of the estate of Elizabeth Wiles, a housekeeper at Brighton who died from covid in May. In that case, before Senior U.S. District Judge Arthur J. Schwab, Brighton also tried to claim immunity under the PREP Act. However, Schwab found in an October opinion that immunity under PREP doesn’t apply in cases where protective measures were not taken.

In that opinion, Schwab wrote that the PREP Act provides an exception for “death or serious physical injury proximately caused by willful misconduct.

“The term ‘willful misconduct’ denotes an act or omission that is taken – [1] intentionally to achieve a wrongful purpose; [2] knowingly without legal or factual justification; and [3] in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit,” he wrote.

Schwab granted a motion by the plaintiff to remand that case to Allegheny County Common Pleas Court, but that decision is now on appeal to the 3rd U.S. Circuit Court of Appeals.

Robert Daley, who represents the plaintiffs in Judge Bissoon’s case, said that there are more than a dozen decisions similar to Schwab’s across the country.

“We feel all the prior decisions are consistent with our position,” he said.

Daley noted that their complaint includes claims for negligence prior to the pandemic, as well.

But in the filing before Judge Bissoon, Brighton does not address any earlier claims. Instead, it argues that PREP does provide immunity for “non-use” of personal protective equipment.

“To be clear, this provision also provides immunity for decisions on whether and when to act (or not act) and protects omissions, such as delay in testing or treatment, or delay in countermeasure deployment,” they wrote. “If the decision not to provide certain care (even if true) is the decision, it is still protected under the PREP Act as a matter of law.”

In the 41-page court filing, Brighton’s lawyers claim that guidance from the World Health Organization, Centers for Disease Control and Prevention, as well as other public health authorities, has been constantly evolving during the pandemic.

“In fact, expert advice concerning when to provide countermeasures and whether to ‘use’ covered countermeasures is often conflicted, and program planners must make the best decisions they can using the best available information.”

Brighton said that their challenges were exacerbated by that conflicting advice. Some experts, they wrote, recommended not wearing masks initially to ensure the limited supply went to hospital intensive care units and first responders. And, they said, testing was limited.

The filing argues that the case should be dismissed based on immunity now — rather than at a later stage following lengthy and expensive litigation.

If it is not dismissed on immunity, Brighton also argued that the lawsuit improperly joins 17 plaintiffs together, and that federal court in Pittsburgh is not the appropriate venue for it.

Instead, Brighton’s lawyers said that the federal government created an emergency fund under the PREP Act to pre-empt claims like the one against it. If that remedy is exhausted, the attorneys wrote, then any action must be filed in federal court in Washington, D.C.