Health Law Daily Wrap Up, SKILLED NURSING FACILITIES—D. Kan.: Nursing home COVID death case remanded to state court, (Jan 24, 2022)

By Kenneth H. Ryesky, M.B.A., J.D.

State law causes of action not preempted by PREP Act.

A federal district court in Kansas granted a man's remand motion, finding that the Public Readiness and Emergency Preparedness Act (PREP Act) (42 U.S.C. §§ 247d) did not preempt the state law claims asserted by the man against a nursing home relating to the death of his mother from COVID. For jurisdiction-determining purposes, the healthcare facility could not assert a federal question in its pleadings when the man did not do so. The PREP Act's remedy of an exclusive federal cause of action for willful misconduct by the healthcare provider did not apply because the man's pleadings did not reach the requisite stringent level for willful misconduct, and the man's pleadings did not assert the direct causation requisite for payout from the Covered Countermeasure Process Fund (CCPF). Moreover, the court found no embedded federal question in the man's pleadings (Pirotte v. HCP Prairie Village KS OPCO LLC, January 20, 2022, Crabtree, D.).

A man whose mother died from COVID while living in a residential health care facility alleged state claims of (1) wrongful death; (2) survival and lost chance of recovery; and (3) negligence against the facility in state court. The facility removed the case to federal court. The man moved for a remand to state court.

Federal court removal. The court found that the healthcare facility could not assert a federal cause of action where, as here, the man's complaint did not reference any federal cause of action. The woman (and therefore her estate) and the residential facility were each citizens of the Kansas, so there was no basis for federal diversity jurisdiction; accordingly, federal question jurisdiction was necessary for the court to entertain the case. The healthcare facility's pleading of a federal cause of action ordinarily cannot serve to invoke federal question jurisdiction when the complaint is devoid of any federal question assertions. An exception to the rule that prevents a defendant's pleadings from insinuating a federal question where none is pleaded by the plaintiff is where a federal statute preempts the state law, but in such cases, a showing must be made that the federal statute completely preempts the asserted state law claims. Here, the man's pleadings were not completely preempted by the PREP Act's provisions.

Willful misconduct. When, as in the present case, a public health emergency has been declared by the HHS, the PREP Act immunizes residential health care facilities such as the one where the woman resided from liability "under Federal and State law" and also provides remedies in lieu of all other federal and state causes of action. One such remedy is an exclusive federal remedy for "willful misconduct" on the part of the healthcare provider. The "willful misconduct" standard must be construed more stringently than the standard for negligence or for recklessness under 42 U.S.C. §247d-6d(c)(1)(B). Here, the man's state law allegations did not rise to the "willful misconduct" standard.

Covered Countermeasure Process Fund (CCPF). For injuries not proximately caused by willful misconduct, the PREP Act has established a fund from which injured parties can seek payments for "injuries directly caused by the administration or use of a covered countermeasure.” The man's state law claims did not plead direct causation, although they did plead ordinary negligence. For CCPF purposes, merely pleading that a covered countermeasure (such as the use of personal protective equipment or the administration of a relevant medication) was applied to another patient but not applied to the injured patient, or that a particular countermeasure was or was not applied, is not sufficient; there needs to be a direct causal connection.

Federal question. The court found that the man's claims did not raise significant federal issues to entail an embedded federal question. The court applied the four-prong test enunciated in Gunn v. Minton, 568 U.S. 251, 258 (2013), that the federal question must be "(1) necessarily raised; (2) actually disputed; (3) substantial; and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." The healthcare facility's assertion that the federal question might be raised was insufficient, so analysis of the remaining three prongs of the Gunn test was unnecessary.

The case is No. 21-2346.

Attorneys: Ashley L. Ricket (Ricket Law Firm) for Michael H. Pirotte. Charlie C.H. Lee (Moore & Lee, LLP) and Jaime L. Whitt (Simpson, Logback, Lynch, Norris, PA) for Healthpeak Properties, Inc., Sunrise Senior Living Management, Inc., Welltower Opco Group, LLC d/b/a Sunrise Senior Living, LLC, Welltower, Inc., HCP Prairie Village KS Opco LLC d/b/a Brighton Gardens of Prairie Village., Lisa Barnes., HCP S-H Sunrise OPCO Holdco, LLC., HCP MA4 Kansas City, Ks, LLC, HCP S-H OPCO TRS LLC and HCP Senior Housing Properties LLC.

Companies: Healthpeak Properties, Inc.; Sunrise Senior Living Management, Inc.; Welltower Opco Group, LLC d/b/a Sunrise Senior Living, LLC; Welltower, Inc.; HCP Prairie Village KS OPCO LLC d/b/a Brighton Gardens of Prairie Village; HCP S-H Sunrise OPCO Holdco, LLC; HCP MA4 Kansas City, KS, LLC; HCP S-H OPCO TRS LLC; HCP Senior Housing Properties LLC

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