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Law360 (January 19, 2021, 10:10 PM EST ) Plaintiffs suing an Illinois nursing home over a coronavirus outbreak that killed at least 12 residents said Monday that the home is making a "circular" argument by trying to dismiss a trio of suits under both a gubernatorial order shielding health care providers from COVID-19 suits and a state law governing nursing home care.
The suits filed by Eileen Walsh — the estate administrator for deceased resident Rita Saunders — and others claim that Westchester Health and Rehabilitation Center, a long-term care facility that had 47 confirmed cases of COVID-19 and at least 12 deaths, failed to implement proper infection control protocols and negligently allowed symptomatic workers to treat patients without wearing personal protective equipment, in violation of federal health guidelines.
In response to Westchester's November motion to dismiss the three suits, the plaintiffs said Monday that Westchester's parent company is trying to "have it both ways" by asserting that the claims are invalid under both Gov. J.B. Pritzker's executive order and the Illinois Nursing Home Care Act.
"[Westchester] asserts that no current cause of action exists for negligence under the Illinois Nursing Home Care Act (INHCA) because of a gubernatorial executive order," the plaintiffs said, referring to Pritzker's April 1 executive order granting civil immunity to health care providers rendering medical treatment in support of the COVID-19 outbreak, absent gross negligence or willful misconduct.
"It then argues no cause of action exists under the executive order because the higher liability standards it imposes are not part of the INHCA," the filing states. "Each alternative basis for liability prevents the other from being operable, abrogating all possible liability for its misconduct. The circular nature of its argument betrays the poverty of its position."
Monday's filing is part of the opening salvos in a legal battle that will ultimately boil down to whether Pritzker's April executive order and a clarifying order issued in May are constitutional.
An attorney for Westchester, Johanna L. Tracy, told Law360 on Tuesday that the nursing home complied with and exceeded public health requirements to protect its staff and residents.
"We believe the intent of Gov. Pritzker's gubernatorial order was to protect from litigation the true heroes who care for the vulnerable population in long-term care facilities such as Westchester during a worldwide pandemic," she said. "We are hopeful that our motion to dismiss will be granted, but if the lawsuit is allowed to proceed, it will be clear that Westchester staff did everything to protect its residents and staff members, and most certainly was not negligent."
Michael Bonamarte, an attorney for the plaintiffs, did not immediately respond to a request for comment Tuesday. But in December, Bonamarte told Law360 that the major issue in the case will be the constitutionality of the governor's executive order and whether he has the authority to set the heightened legal standard.
"Even if the order is upheld, that's not necessarily going to deter us from continuing," he added. "It just means our burden is higher. And I think we will be able to meet that burden."
The plaintiffs said Monday that because they filed two separate claims in the suits — negligence under the INHCA and willful and wanton misconduct — Westchester's argument that the negligence claim is preempted by the governor's executive order is akin to an affirmative defense that must be pled separately and can't be grounds for dismissal.
The plaintiffs also took umbrage with Westchester's assertion that the willful and wanton misconduct claim fails because the INHCA does not provide for such a cause of action.
"Nothing in the executive order establishes a private right of action," the filing states. "Thus, any action still emanates from the INHCA."
The plaintiffs are represented by Michael F. Bonamarte IV, Steven M. Levin and Bryan A. Ruggiero of Levin & Perconti, and Robert S. Peck of Center For Constitutional Litigation PC.
The nursing home is represented by Terrence S. Carden III, Ruwan C. Perera and Johanna L. Tracy of Carden & Tracy.
The cases are Walsh v. SSC Westchester Operating Co. LLC, case number 1:20-cv-04505, Brady v. SSC Westchester Operating Co. LLC, case number 1:20-cv-04500, and Claybon v. SSC Westchester Operating Company LLC, case number 1:20-cv-04507, in the U.S. District Court for the Northern District of Illinois.
--Editing by Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
