By Y. Peter Kang

Law360 (April 9, 2021, 7:37 PM EDT ) An Illinois federal judge ruled Friday that a nursing home accused of causing a COVID-19 outbreak that resulted in the deaths of several residents can't escape twin suits because the residents' family members plausibly alleged violations of a state law governing nursing home care.

U.S. District Judge Manish S. Shah denied motions to dismiss lodged by SSC Westchester Operating Co., the owner of Westchester Health and Rehabilitation Center, a long-term care facility that had 44 confirmed cases of COVID-19 and at least 12 deaths. The suits claim the nursing home knowingly exposed residents to positive or symptomatic medical staff in violation of the Illinois Nursing Home Care Act.

Relatives of residents Lottie Smith and Rita Saunders, the latter of whom died of the virus, also alleged that Westchester 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.

Westchester had argued that it is immune to the claims under an executive order issued by Gov. J.B. Pritzker in April 2020 which granted civil immunity to health care providers rendering medical treatment in support of the COVID-19 outbreak, absent gross negligence or willful misconduct.

But Judge Shah said Friday that because an immunity defense generally depends on the facts of a case, "dismissal at the pleading stage on immunity grounds is usually inappropriate" unless the allegations line up unambiguously with the immunity defense.

"Plaintiffs' complaints don't conclusively establish that immunity applies," he said. "There are outstanding factual issues to resolve."

One outstanding issue is whether Westchester complied with a requirement of the executive order stating that a health care provider must be engaged in "rendering assistance to the state" by providing treatment in response to the pandemic, according to the order.

"There's a difference between allowing the virus to spread by taking no preventative measures, and spreading the virus while affirmatively treating it or trying to prevent spread," Judge Shah said. "Only the latter is immunized, and it's not clear from the complaints that the staff infected the residents in the course of providing COVID-related treatment — it's just as reasonable of an inference that transmission occurred during routine, non-COVID-related care."

In addition, the judge said, the suits should be allowed to move forward because the plaintiffs plausibly alleged that Westchester engaged in willful misconduct, which, if proven to be true, would render the immunity defense invalid.

"Taking the allegations in plaintiffs' complaints as true, Westchester knew about the risks of exposing its residents to infected nursing staff by mid-March, when Smith and Saunders began to experience symptoms," the order said. "Plaintiffs have sufficiently alleged that Westchester consciously disregarded the risk to its residents when it knowingly exposed them to infected staff members who had no personal protective equipment."

An attorney for the plaintiffs, Michael Bonamarte of Levin & Perconti, told Law360 on Friday that he was pleased with the ruling, which he said was "well reasoned and consistent with established case law."

"Nursing home residents and their families can find solace in this decision knowing they have a path to hold nursing home corporations accountable for the devastation they caused by being ill prepared to deal with this pandemic," he said.

An attorney for the nursing home, Terrence Carden of Carden & Tracy, said he was disappointed with the decision but expressed confidence that as the case progresses the evidence will show his client acted appropriately regarding health guidelines and is entitled to immunity under the governor's executive order.

"Unfortunately, the court must accept the pled facts as true," he said. "We also believe that Judge Shah misconstrued and mischaracterized the efforts of Westchester Healthcare and Rehabilitation to provide assistance to the state to address the once-in-a-century pandemic. The court's reading of the immunity provisions of Gov. Pritzker's order misses the mark in our view — so much as to make it practically impossible to enforce at this stage of the litigation."

The plaintiffs are represented by Michael F. Bonamarte IV, Steven M. Levin and Bryan A. Ruggiero of Levin & Perconti and Robert S. Peck of the Center for Constitutional Litigation PC.

The nursing home is represented by Terrence S. Carden III, Ruwan C. Perera and Rebecca C. Barnard of Carden & Tracy.

The cases are Brady v. SSC Westchester Operating Co. LLC, case number 1:20-cv-04500, and Walsh v. SSC Westchester Operating Co. LLC, case number 1:20-cv-04505, in the U.S. District Court for the Northern District of Illinois.

--Editing by Orlando Lorenzo.

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