Florida Nursing Home Attempts To Invoke Federal Statute To Avoid State COVID Lawsuit

The COVID-19 pandemic has placed renewed scrutiny on Florida’s nursing homes and the often substandard and negligent care they provide to residents. Many patients have suffered and died due to failure to follow basic safety protocols during this emergency. Yet when faced with the prospect of accountability for this neglect, these same nursing homes seek refuge in legal procedures meant to frustrate the victims’ efforts to seek justice.

Judge: PREP Act Does Not Create Right to Transfer Cases to Federal Court

A recent decision from a federal judge in Tampa provides a case in point. In Turner v. The Bristol at Tampa Rehabilitation Nursing Center, LLC, the plaintiff filed a wrongful death lawsuit, alleging that a family member died at the defendant’s nursing home due to negligence, specifically the “failure to institute adequate COVID-19 protocols and provide proper COVID-19 training and equipment.”

The plaintiff filed her lawsuit in Florida state court, as her claims fall within state law. Despite this, the defendant attempted to remove–transfer–the case to federal court. Defendants often prefer federal courts because they view the process as more friendly towards them. However, not every case can be heard in federal court. There are specific rules governing removal.

Typically there are two grounds for removing a case. One is “diversity,” meaning the plaintiff and the defendant are residents of different states. That was not the case here. The second is that the plaintiff’s lawsuit involves some question of federal law. Here, the defense argued that a federal question existed because the state-law claims raised by the plaintiff were “preempted” by a federal statute, the Public Readiness and Emergency Preparedness (PREP) Act.

The PREP Act authorizes the federal Department of Health and Human Services (HHS) to declare a public health emergency. Once such an emergency is declared, certain covered persons are exempt from federal and state civil suits arising from their implementation of any countermeasures designed to address the emergency, except in cases of death or serious physical injury caused by willful misconduct.

In this case, the defendant nursing home insisted that any alleged negligence on its part was covered by the March 2020 PREP Act declaration establishing the COVID-19 emergency.

But as a federal judge explained, the PREP Act “does not create specific removal jurisdiction.” That is to say, nothing in the federal statute granted the defendant an automatic right to remove their case from state to federal court. Although the general counsel of HHS issued an advisory opinion back in January suggesting the PREP Act did allow for removal, the court said that opinion was not legally binding. As such, there were no grounds for keeping this case in federal court, and the judge remanded the plaintiff’s lawsuit back to Florida state court.

Contact a Fort Lauderdale Nursing Home Neglect Attorney Today

We are likely to see more cases like this as the full extent of the COVID-19 pandemic comes to light. If you, or someone you love, has been the victim of nursing home abuse or neglect and you need legal representation from a qualified Boca Raton nursing home neglect lawyer, Contact Leifer & Ramirez today to schedule a free consultation.

Source:

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