Nursing Homes to Face COVID Negligence Suit

The U.S. District Court for the Northern District of Illinois ordered that a nursing home could be liable for negligence and willful misconduct claim brought by the family of the woman resident who died during the outbreak of COVID 19. The Court noted that the pleadings were strong enough to refute dismissal at this stage. The Court stated that it was too early to decide if the Westchester Health and Rehabilitation Center, which is a long-term care facility and had forty-seven confirmed cases of COVID 19 and at least twelve deaths, was protected by an executive order of Governor J.B. Pritzker. See Executive Order No. 37. Therefore, the Court refused to dismiss the suit brought by the family of the deceased, Carrie Claybon, who died in March 2020. Claybon v. SSC Westchester Operating Company LLC, case number 1:20-cv-04507.

The aforementioned executive order provides protection to facilities from liability. However, it also provides for exception in cases of “gross negligence or willful misconduct” if the protected facilities rendered assistance to the state by providing health care services during the global pandemic. The Westchester, in motion to dismiss said that it “attempted” to provide assistance to the state. It also tried to increase the number of beds, preserve protective equipment and take the necessary steps to treat COVID 19 patients. During the proceedings, the judge asked, “This argument raises more questions than it answers- did the attempt succeed?…What was the scope of the attempt? When did the attempt occur? Although Westchester filed an affidavit in support of its motion, the affidavit is barebones and does not shed any light on Westchester’s attempt to render assistance.”

It is pertinent to note that the suit filed by the family of Carrie Claybon is one of the several suits filed by the families of those who died following the Westchester outbreak. In these suits the families have claimed that the facility failed to implement suitable infection control protocols and negligently allowed symptomatic workers to treat patients without using personal protective equipment, thereby violating the federal health guidelines. The families further claimed that in early March of 2020, Westchester had the knowledge that many of its workers were symptomatic and one of its nurses was even diagnosed with COVID 19. However, it still asked its staff to return to work anyway.

One of the twelve deceased, Carrie Claybon developed a dry cough and a fever of 102 degrees Celsius and died a few days after. The Westchester replied that claims of the family did not sufficiently demonstrate “wanton and willful” behavior or intentionality. However, on April 1, 2021, Judge Durkin disagreed with Westchester. He held that “although discovery will likely bear out what Westchester knew and when, the court can reasonably infer from the allegations in the complaint that Westchester exhibited a reckless disregard for Claybon’s health and well-being, or worse, knew that exposing Claybon to symptomatic nurses would cause her to contract the virus.”



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