Selva Campbell, a stroke patient, was admitted to defendant Woodcliff Health & Rehabilitation Center in Bergen County on March 23, 2020, coming under the care of defendant Birinder Kaur, M.D. less than two weeks after the
World Health Organization declared the novel coronavirus (COVID-19) a global pandemic and two days after Governor Murphy issued his first stay-at-home order. Three weeks later, on April 14, Woodcliff discharged Mrs. Campbell from the facility to her home and the care of her husband Donville Campbell.
The day before Mrs. Campbell’s discharge, Dr. Kaur administered a COVID PCR (polymerase chain reaction) test to Mrs. Campbell. The off-site lab returned a positive test result to Woodcliff on April 16, two days after Mrs. Campbell’s discharge. The facility notified Mrs. Campbell of her positive test as soon as staff received it. According to plaintiff, Woodcliff advised “Mrs. Campbell should quarantine, and Mr. Campbell should be tested immediately.”
Mrs. Campbell recovered from COVID, although she has since succumbed to other causes. Tragically, however, Mrs. Campbell’s husband contracted COVID shortly after his wife, allegedly from her, and he died from complications of the virus on May 28, 2020.
Plaintiff, the Estate of Donville Campbell, filed a three-count complaint against Woodcliff and Dr. Kaur alleging medical negligence, wrongful death and a survival claim, all premised on Dr. Kaur’s alleged “negligent, grossly negligent, careless and reckless actions and omissions” in failing to ensure Mrs. Campbell was not COVID positive before discharging her from Woodcliff. Plaintiff alleged Dr. Kaur owed a duty not only to her patient Mrs. Campbell, “but also to those third parties who foreseeably and reasonably relied on competent skill and care to be exercised” by Dr. Kaur in testing Mrs. Campbell for COVID and discharging her home, “and who would be foreseeably affected by any deviation in the standard of care,” such as her husband Mr. Campbell.
Defendants Woodcliff and Dr. Kaur moved to dismiss the complaint for failure to state a claim pursuant to Rule 4:6-2(e), alleging they owed no duty of care to Mr. Campbell, and that defendants were immune under the New Jersey COVID-19 Immunity Statute, L. 2020, c. 18, and the Public Readiness and Emergency Preparedness Act (PREP Act), 42 U.S.C. § 247d-6d. The trial court denied defendants’ motions and their motions for reconsideration, finding plaintiff should be permitted the opportunity to take discovery on whether defendants’ conduct constituted gross negligence, thereby depriving them of the immunity provided by the New Jersey COVID-19 Immunity Statute.
COVID Immunity Statute
COVID Immunity Statute, L. 2020, c. 18 § 1(c), signed into law on April 14, 2020, the day of Mrs. Campbell’s discharge, and effective immediately, retroactive to March 9, provides that neither a health care facility nor health care professional shall “be liable for civil damages for injury or death alleged to have been sustained as a result of an act or omission by the health care professional in the course of providing medical services in support of the State’s response to the outbreak of coronavirus disease during the public health emergency and state of emergency declared by the Governor in Executive Order 103 of 2020.”
The legislation specifically provides that the immunity granted “shall not apply to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.” The statute expired on September 1, 2021, with the declared end of the public health emergency, although the civil immunity for healthcare professionals continued, limited to those individuals specifically engaged in testing for and providing vaccinations
against COVID-19.
The Superior Court of New Jersey Appellate Division held in its June 26, 2024 published opinion: “Although it may well be that defendants owed no duty to Mr. Campbell, it is not possible to definitively say so on this complaint … We are, however, confident that even if plaintiff could amend its complaint to articulate a recognizable duty in defendants, plaintiff could not plead facts sufficient to permit a reasonable jury to find defendants were grossly negligent or reckless in not waiting to discharge Mrs. Campbell from Woodcliff while the result of her PCR test was pending … Simply stated, the Legislature’s decision in the COVID Immunity Statute to temporarily limit the scope of whatever duty we might recognize defendants owed the Campbells to one of simply avoiding gross negligence during the height of the COVID pandemic leaves the Estate unable to state a claim on the facts alleged. It is not possible for a reasonable jury to find defendants were not simply negligent, but grossly negligent or reckless in discharging Mrs. Campbell from Woodcliff to the care of her husband in April 2020, before knowing the result of her pending PCR test.”
Gross Negligence
“Although plaintiff has not clearly identified any recognizable duty defendants owed Mrs. Campbell and her husband in its complaint, what is clear is that plaintiff did not plead facts that would permit a reasonable jury to conclude defendants were indifferent to Mrs. Campbell or acted egregiously in “thoughtless disregard of the consequences” to her or her husband by discharging her from Woodcliff while the result of her PCR test was pending and by immediately advising them of the positive result when defendants received it two days later … Despite plaintiff’s possession of Mrs. Campbell’s medical records, nowhere in the complaint did plaintiff allege defendants knew or should have known Mrs. Campbell had COVID-19 prior to receiving her test result … Although plaintiff might be able to articulate a clearer theory of liability, that given what was known about the transmissibility of the virus, for example, defendants shouldn’t have discharged Mrs. Campbell without advising her to assume she had been infected and to conduct herself accordingly until the result of her PCR test confirmed otherwise, we could not find the failure to provide her that information for two days would satisfy plaintiff’s obligation to plead facts sufficient to support the element of gross negligence … Plaintiff is simply without facts to demonstrate that defendants’ alleged breach of the standard of care owed to Mrs. Campbell, however reasonably defined, amounted to more than simple negligence; certainly there is nothing in the facts alleged to demonstrate an extreme or reckless deviation in defendants’ discharge of Mrs. Campbell.”
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