Testa v. Broomall Operating Co.

622 F.Supp.3d 4

Rose Marie M. TESTA, Plaintiff, v. BROOMALL OPERATING COMPANY, L.P., et al., Defendants.

CIVIL ACTION NO. 21-5148-KSM

United States District Court, E.D. Pennsylvania

Signed August 18, 2022

Robert F. Daley, Sara J. Watkins, Robert Peirce & Associates, P.C., Pittsburgh, PA, for Plaintiff.

Deva Solomon, Steptoe & Johnson PLLC, Denver, CO, Kristen Andrews Wilson, Steptoe & Johnson PLLC, Wheeling, WV, for Defendants Broomall Operating Company LP, Broomall Operating GL, LLC.

MEMORANDUM

MARSTON, District Judge

Mary DeMarco tragically passed away from COVID-19 in April 2020 while residing at Broomall Rehabilitation and Nursing Center. (Doc. No. 13 ¶ 9.) Mrs. DeMarco's daughter, Plaintiff Rose Marie M. Testa, as Executrix of the Estate of Mary DeMarco, brings claims against Broomall Operating Company LP and Broomall Operating GL, LLC (together, "Broomall"). (Id.) Testa claims that Broomall's failure to adequately prepare for a pandemic and negligence in caring for elderly patients in the early days of the COVID-19 pandemic proximately caused Mrs. DeMarco's death. (Id. ¶¶ 122-214.) Presently before the Court is Broomall's motion to dismiss. (Doc. No. 36.) For the reasons below, the motion is denied.

I. BACKGROUND

A. Factual Background

Accepting the allegations in the Amended Complaint as true, the relevant facts are as follows.

1. Mrs. DeMarco's Death

Following a fall at her home, Mrs. DeMarco was admitted to Broomall on February 6, 2019, for nursing, rehabilitation, and general self-care services. (Doc. No. 13 ¶ 25.) In April 2019, Mrs. DeMarco was moved to "long term care." (Id. ¶ 28.) Although she was first placed in the end stage dementia unit with a roommate, she was later moved to a single room in the nursing dementia unit. (Id.)

On March 11, 2020, Broomall placed its facility on "lockdown" due to the COVID-19 pandemic, and the residents were no longer allowed to have visitors. (Id. ¶ 29.) Shortly after the nursing home went on lockdown, Testa dropped off laundry for her mother and observed nurses "taking off [personal protective equipment] and placing it into their bags with names on them." (Id. ¶ 30.) On April 2, the nursing dementia unit was "cleared out in preparation for any potential COVID-19 cases at the facility," and Mrs. DeMarco was transferred back to the end stage dementia unit, where she again had a roommate. (Id. ¶ 31.) Testa was unnerved by this move and asked a caseworker at Broomall whether anyone at the nursing home had tested positive for COVID-19; they informed her that no one had. (Id. ¶ 32.)

On April 8, Testa had a video call with her mother and noticed that she was "a little disoriented." (Id. ¶ 37.) On April 12, Mrs. DeMarco had an elevated temperature. (Id. ¶ 38.) She took a Tylenol, and a nurse told Testa they would take bloodwork the following day. (Id.) On April 15, Mrs. DeMarco fell in her room. (Id. ¶ 39.) Mrs. DeMarco's medical records from the day of the fall indicate that her roommate had tested positive for COVID-19, and the staff suspected that Mrs. DeMarco had COVID-19 as well. (Id.) The staff alerted Testa that her mother had COVID-19 on April 17, after a test confirmed the diagnosis. (Id. ¶¶ 42-43.)

Although she had tested positive for COVID-19, Mrs. DeMarco was permitted to travel out of her room to interact with other residents and get her nails done until she was placed in isolation on April 19. (Id. ¶¶ 44-45.) On April 20, Testa had a "window visit" with her mother and noticed that she "was having trouble holding her head up, her teeth were completely brown, and she looked delirious." (Id. ¶ 46.) During that visit, Testa saw a man wearing a hazmat suit who she suspected to be in the National Guard. (Id. ¶ 47.) Testa asked the man what was wrong with her mother, and he said, "It's the virus. It's the COVID." (Id.) On April 22, Mrs. DeMarco passed away; her cause of death was "Sequelae of Novel COVID-19 Infection." (Id. ¶ 50.)

2. COVID-19 at Broomall

On March 6, 2020, Pennsylvania Governor Tom Wolf issued a Proclamation recognizing the "threat of imminent disaster and emergency" COVID-19 posed to the Commonwealth. (Id. ¶ 53.) Broomall "locked down" on March 11, and the facility reported its first positive case on April 2. (Doc. No. 13 ¶¶ 57-59.)

By April 18, Broomall reported 49 positive cases, and the National Guard deployed twelve Army medics and six Air Force nurses to Broomall. (Id. ¶ 61.) Broomall executives asked the National Guard to leave on April 22—just four days after they arrived, and the same day Mrs. DeMarco passed away. (Id. ¶ 62.) By May 26, 155 residents at Broomall had contracted COVID-19, and 43 had died from the virus. (Id. ¶ 64.)

3. Citations for Inadequate Infection Control Measures

In the years leading up to the COVID-19 pandemic, Broomall had an "inadequate infectious disease protocol." (Id. ¶ 66.) In 2019, the Pennsylvania Department of Health inspected Broomall six times, identified 18 deficiencies (including one involving infection control), and fined Broomall $7,036. (Id. ¶ 67.)

On June 1, 2020, the Department of Health conducted an on-site "COVID-19 Focused Emergency Preparedness Survey." (Id. ¶ 74.) The Department of Health "cited Broomall for numerous infractions and deficiencies, including Broomall's non-compliance with federal requirements for infection control." (Id. ¶ 76.) The Department of Health observed multiple members of the nursing staff in cloth masks (as opposed to more protective N95 masks) and other members of the nursing staff not wearing any mask at all. (Id. ¶ 78.) Based on these observations and conversations with Broomall employees, the Department of Health concluded that Broomall "failed to ensure that Personal Protective Equipment (PPE)s [sic] were used correctly and appropriately, and infection control practices were maintained." (Id. ¶ 77.)

4. Staffing at Broomall

Broomall earns "much" of its revenue through Medicare and Medicaid programs. (Id. ¶ 83.) Medicare pays nursing homes more to care for residents who require higher levels of care (id. ¶ 85), which incentivizes nursing homes to admit patients with more demanding medical needs (id. ¶ 87). In 2017, the Center for Medicare and Medicaid Services ("CMS") estimated that Broomall would provide its residents with 4.38 hours of nursing care per day, but Broomall provided only 3.56 hours of nursing care per day. (Id. ¶¶ 95-96.) This trend continued in 2018 (with Broomall providing 0.50 hours less of nursing care per day than expected) (id. ¶ 101) and 2019 (with Broomall providing 0.58 hours less of nursing care per day than expected) (id. ¶ 107). Testa estimates that Broomall saved nearly $5 million from 2017 through 2019 by staffing fewer nurses than necessary to provide the level of care CMS expected. (See id. ¶¶ 114-16.)

5. Broomall's Alleged Shortcomings During the COVID-19 Pandemic

Testa claims Broomall acted "negligently, grossly negligently, recklessly, and with reckless indifference" in a variety of ways, including by

• Failing to establish and maintain an infection prevention and control program;

• Failing to establish adequate policies to identify communicable diseases in the facility;

• Failing to establish policies, precautions, and safeguards to prevent the spread of infection;

• Failing to establish policies for when and how to isolate a resident with a communicable infection;

• Failing to request assistance when it became clear COVID-19 was spreading throughout the facility;

• Failing to test residents and staff for COVID-19;

• Failing to maintain proper social distancing;

• Failing to provide supplies for residents and staff to wash their hands;

• Failing to provide employees with personal protective equipment; and

• Understaffing the facility.

(See, e.g., id. ¶ 131.)

B. Procedural History

On November 2, 2021, Testa initiated this action in the Delaware County Court of Common Pleas against Broomall. (Doc. No. 1-1.) Broomall timely removed the matter to this Court (Doc. No. 1) and moved to dismiss for failure to state a claim (Doc. No. 12).

On December 29, Testa amended the complaint as of right pursuant to Federal Rule of Civil Procedure 15(a)(1)(A). (Doc. No. 13.) The Amended Complaint clarified that Testa was not bringing claims for willful misconduct under the civil liability section of the Public Readiness and Emergency Preparedness ("PREP") Act and added negligence and wrongful death claims against certain Broomall executives (who had not been parties to the lawsuit prior to the amendment). (Id.) On January 7, 2022, Broomall moved to strike the executives from the Amended Complaint. (Doc. No. 14.) And on January 25, Testa moved to remand the matter back to the Delaware County Court of Common Pleas. (Doc. No. 23.) The Court granted the motion to strike and denied the motion to remand.¹ (Doc. No. 34.)

On June 9, Broomall moved to dismiss the Amended Complaint for failure to state a claim. (Doc. No. 36.) Broomall argues it is immunized from suit under the PREP Act, as its alleged wrongdoing has a "causal relationship" to the use of "covered countermeasures." (Doc. No. 36-1 at 10.) In the alternative, Broomall argues the PREP Act preempts the Amended Complaint and that the Pennsylvania Emergency Management Services Code immunizes Broomall from liability for claims "related to the contraction of COVID-19." (Id. at 15, 19-20.) Testa opposes the motion. (Doc. No. 38.) She argues the PREP Act does not preempt her claims, as she does not bring claims for willful misconduct. (Id. at 27.) She also contends that the PREP Act does not shield Broomall from liability, as its alleged wrongdoing does not relate to the use of a covered countermeasure. (Id. at 13-17.) Finally, she contends that the Pennsylvania Emergency Management Services Code does not shield Broomall from her claims, either. (Id. at 27-28.)

II. LEGAL STANDARD

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible...