Federal judge says COVID measures can’t be used as a defense in nursing home neglect case

By: - March 11, 2023 9:40 am

Canyon Creek Memory Care Community in Billings, Montana (Photo by Darrell Ehrlick of the Daily Montanan).

A federal judge has ruled the families of three people who died at a nursing home can sue the business, which is not protected by laws Congress passed to exempt care facilities from certain liabilities during the COVID-19 emergency.

Attorneys for the estates of Robert Petersen, Mary Ann Simons and Charlotte Guilford have sued Koelsch Senior Communities, which operates Canyon Creek in Billings, because they say the three died during the COVID pandemic, but not from COVID, rather from a lack of care and neglect at the nursing center.

Attorneys for Canyon Creek had argued before federal magistrate Timothy Cavan that federal laws passed during the pandemic emergency shielded them from liability. But in a ruling, U.S. District Judge Susan P. Watters affirmed the federal shield enacted by Congress protected businesses and healthcare centers from any liability arising from the use of COVID related treatments or devices, but did not insulate companies from being sued for neglect or other causes, even if they happened during the pandemic.

The case will now move toward trial, according to John Heenan, one of the attorneys representing the three estates.

In their lawsuit, Heenan and his colleagues said the for-profit center knew about the pandemic, pledged to care for the clients who needed constant care, and yet neglected to maintain the proper staffing with protocols to provide even the most basic care. The complaints detail residents’ weight loss, being clinically dehydrated and developing sores from lack of attention. Petersen and Simon’s families both describe discovering their loved ones sitting in their own urine when they were allowed to see them. And both died shortly after from conditions that attorneys say were preventable.

“(The case) is clear that the alleged cause of plaintiffs’ harms is Canyon Creek’s failure to provide adequate care generally, not specific to COVID-19,” Watters said. “Petersen’s and Simons’ representatives said that had become malnourished and dehydrated, developed pressure injuries, and had their medications changed…None of these allegations implicate a covered countermeasure, i.e., a drug, product or device used to treat, mitigate, etc., COVID-19 even if the time period in which the alleged breaches occurred was during a COVID-19 outbreak at the facility.”

During the pandemic, nursing homes and other healthcare facilities were allowed to make decisions about which patients to help with COVID measures, especially when vaccines, ventilators and other medical treatment were in limited supply. But Cavan and Watters both pointed out that the three families’ claims have nothing to do with COVID, rather the level of care they received, which was not covered by the Congressional liability waivers.

“Canyon Creek’s failure to act was systematic, stemming from their complete failure to enact COVID-19 control programs,” Watters wrote. “Canyon Creek’s failure to understand this nuance in the PREP Act is fatal to their motion.”

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.