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Law360 (March 4, 2021, 5:53 PM EST ) A New Jersey nursing home operator urged a federal court to toss a proposed class action over its allegedly poor treatment of residents before and during the COVID-19 pandemic, arguing Wednesday that state and federal law insulates the operator from the claims.
In a dismissal motion, Andover Subacute Rehabilitation Center I and Andover Subacute Rehabilitation Center II said the claims by an Andover II resident and relatives of two deceased residents are precluded by the Public Readiness and Emergency Preparedness Act and the New Jersey COVID-19 immunity law.
"Therefore, these claims must be dismissed. This is true regardless of how these claims are characterized because they arise from, and are causally related to, defendants' use and administration of countermeasures in their effort to prevent and mitigate the transmission and spread of the novel COVID-19 coronavirus at their facilities," the brief said.
The defendants pointed out that while litigants can pursue PREP Act remedies for willful misconduct, those claims must be filed in Washington, D.C., federal court after filing a claim with a PREP's Countermeasure Injury Compensation Program.
"Consequently, as plaintiffs have failed to exhaust their exclusive administrative remedies under the PREP Act, this court does not have jurisdiction over these claims, and the complaint must also be dismissed for that reason as well," the brief said.
The defendants went on to say that state law nursing home regulations don't create a private right of action for alleged violations, and that the New Jersey Consumer Fraud Act exempts "learned professionals" like licensed long-term care facilities and medical providers.
The claims were filed in December by Michael Emerson, a current resident of Andover II, and by relatives of Albert C. Roberts and Michele Desbiens. The plaintiffs accuse the Lafayette, New Jersey, facilities of treating patients with "a lack of dignity and respect."
Emerson, who has resided at both facilities at various times since 2019, claimed he was subjected to "repeated physical and mental abuse." He claimed that after he contracted the coronavirus in March 2020, the defendants denied numerous requests by his guardian/attorney-in-fact for his medical records.
Michele Desbiens became an Andover II resident in 2016, the complaint said. Her son Paul Desbiens, the administrator of her estate, claimed the facility refused his repeated requests to get his mother treatment for skin cancer in her arm and to have a ureteral stent removed. She contracted the coronavirus in March and died in May, the complaint said.
A resident of Andover II, Roberts contracted the coronavirus in March 2020 and died the following month, the complaint said. His nephew Brian Roberts, the administrator of his estate, claimed he only learned of his uncle's death several weeks later, after numerous unsuccessful attempts to reach anyone at the facility for an update.
The plaintiffs pointed to inspections by Centers for Medicaid & Medicare Services dating back to 2015 that "repeatedly found each of the facilities to be grossly deficient in many aspects" regarding their duty to residents. The CMS' assessment ratings for the facilities are three stars, which is classified as "average," for Andover I, and one star, the lowest possible rating, for Andover II, the complaint said.
More recently, a CMS inspection report from April investigating the coronavirus outbreak at Andover II in late March 2020 concluded the facility was 'not following infection control safety practices and guidance recommended by CMS and the Centers for Disease Control and Prevention during a COVID-19 pandemic,'" the complaint said.
The report cited shortcomings in following protocols regarding the isolation of patients, staff training in personal protection equipment and the use of infrared thermometers, and handwashing, among other things, according to the complaint.
Representatives for the parties didn't immediately respond to requests for comment.
The plaintiffs are represented by Alina Habba of Habba Madaio & Associates LLP.
The defendants are represented by Malinda A. Miller, Alex W. Raybould and S. Christopher Martino of Lewis Brisbois Bisgaard & Smith LLP.
The case is Michael Emerson et al. v. Andover Subacute Rehabilitation Center I et al., case number 2:20-cv-20066, in the U.S. District Court for the District of New Jersey.
--Editing by Bruce Goldman.
For a reprint of this article, please contact reprints@law360.com.
