Pandemic Wrongful Death Action Against Facility Goes Forward

Elder Law Answers case summary.A COVID-19-related death lawsuit against a long-term care facility can proceed, as no federal or state statute grants immunity at this stage. In State ex. rel. Clinton No. 1 v. Baker (Mo. No. SC100099, March 5, 2024).

Mary Gray resided in Clinton, a health care and rehabilitation center, during the height of the COVID-19 pandemic. Although her daughter had contracted with Clinton to place Ms. Gray in a private room, the facility moved her to a shared room. Her roommate gave her COVID-19, causing her death.

The surviving daughter brought a wrongful death claim against Clinton. She alleged that the facility was recklessly negligent in several ways: It put her mother in a double room despite the contract for a single room, did not follow individualized infection control, failed to separate her mother from the infected roommate, and moved her mother to a hospital without notifying her.

In response, Clinton supplied an affidavit alleging that it placed Ms. Gray in a double room as a response to the pandemic. According to the affidavit, staff tested all the residents for COVID-19 and put residents who tested negative in rooms together. Per the facility, Ms. Gray’s roommate had initially tested negative before later contracting the virus.

The facility brought a motion to dismiss, asserting that the Public Readiness and Emergency Preparedness (“PREP”) Act, 42 U.S.C. §§ 247d-6d and 247d-6e (2018) and two Missouri acts barred her claims.

Overruling the motion, the circuit court rejected Clinton’s claims. Clinton sought a writ of prohibition or mandamus, and the court issued a preliminary writ of mandamus.

The facility claimed the PREP Act protects it. Deciding whether the PREP Act applies is essentially a motion to dismiss for failure to state a claim. As a result, the court can only look at the complaint. For the Act to apply, the complaint must show that Clinton used a covered countermeasure that led to the death.

The complaint contains no covered countermeasure. Nothing in the daughter’s pleading confirms that the facility placed her mother with a roommate because of COVID-19 testing. The only assertion of a countermeasure came from the affidavit.

But if the court looks beyond the complaint to the facility’s affidavit, it would have to treat the facility’s motion as a motion for summary judgment. Since the facility never converted its motion to a motion for summary judgment, the circuit court did not err. The PREP Act does not stop the lawsuit.

Section 44.045.1 shields government-deployed health care providers from liability during an emergency. Clinton failed to show it was a government-deployed health care provider covered by the section. Nothing suggests that the state emergency management agency, the governor, or any state agency had deployed it.

Two Missouri laws, sections 537.1005 and 537.1010, grant immunity in COVID-19 exposure actions and medical liability actions unless the conduct was reckless or willful. In this case, the daughter alleged that Clinton acted recklessly. Because the alleged conduct was reckless, Missouri state law does prevent the suit from moving forward.

No statute bars the litigation. The pleading does not concede that the facility used a covered countermeasure under the PREP Act. There is no evidence that the government deployed the facility to act as Section 44.045.1 requires. State laws barring suits for COVID-19 exposure do not apply to reckless conduct such as the complaint alleged.

The preliminary writ of mandamus is quashed.

Read the full opinion.