Court Remands Nursing Home Negligence Lawsuit: The United States Court of Appeals for the Second Circuit (“Federal Appellate Court”) held in its Summary Order dated April 13, 2023 that the Public Readiness and Emergency Preparedness (PREP) Act did not completely preempt the plaintiff’s claims involving the care the decedent received at the defendant nursing home because the only exclusive federal cause of action established by the PREP Act was for willful misconduct, as defined in 42 U.S.C. § 247d-6d(c). Claims for medical malpractice, negligence, and gross negligence are plainly not within the scope of willful misconduct because negligence and gross negligence do not rise to the level of willful misconduct, which the PREP Act defines as “a standard for liability that is more stringent than a standard of negligence in any form,” and “under New York law, medical malpractice requires only a deviation from the community standards of practice that proximately caused the injuries,” which “is more relaxed than the showing required for willful misconduct.”

The Federal Appellate Court further held: “While OLOC emphasizes the important role played by congregate care facilities in the early days of the COVID-19 pandemic, the government directives they cite ultimately consist of guidance and regulations, which do not suffice to establish the requisite “special relationship” to find they acted under federal officers within the meaning of the statute.”

Underlying Facts

On January 8, 2020, Ana Martinez was admitted to OLOC, a nursing home. Plaintiff Vivian Rivera-Zayas, Martinez’s daughter, alleged that OLOC had a lengthy history of employing poor infection control measures that continued through the onset of the COVID-19 pandemic in early 2020.

On March 21, 2020, Martinez developed a cough and fever, and by March 25, OLOC suspected that Martinez might have COVID-19. On March 30, 2020, Martinez’s condition deteriorated, and she was taken to the hospital, where she died on April 1, 2020.

In June 2020, Rivera-Zayas, as administrator of Martinez’s estate, filed suit against OLOC in New York Supreme Court, Kings County, bringing claims of negligence, gross negligence, negligent supervision, wrongful death, and violations of the New York Public Health Law. OLOC then removed the case to the Eastern District of New York. Plaintiff moved to remand the case to state court, arguing that there was no basis for a federal court to exercise subject-matter jurisdiction over her claims. In August 2021, the district court granted Plaintiff’s motion and ordered the case remanded. The Defendant appealed.

Source Rivera-Zayas v. Our Lady of Consolation Geriatric Care Center, 21-2164-cv.

If you or a loved one may have been injured as a result of medical malpractice in a nursing home in New York or in another U.S. state due to a nursing home infection, nursing home fall, nursing home aspiration, nursing home neglect, nursing home negligence, nursing home abuse, nursing home under-staffing, or the nursing home failing to properly care for a vulnerable adult, you should promptly find a New York medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your nursing home medical malpractice claim for you and represent you or your loved one in a nursing home medical malpractice case, if appropriate.

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