COVID-19 case moves forward

Where plaintiff estate sued two LLCs that operate an assisted living facility for wrongful death, alleging that plaintiff’s decedent died because they did not comply with COVID-19 protocols, defendants’ demurrer is “entirely overruled.”

The requirement that plaintiff obtain an expert before suing defendants does not apply in this case. Defendants operate an assisted living facility and are not health care providers.

Background

“As alleged in Plaintiff’s complaint, on January 19, 2021, decedent Frances Hamilton died of COVID-19 that she contracted while a resident of an assisted living facility operated by defendants Tribute at One Loudoun, LLC and Cadence Senior Living, LLC.

“It is alleged that Defendants were negligent in multiple respects: by failing to take all necessary precautions to prevent the spread of the virus to residents, supplying inadequate staff, and supplying inadequate care.

“In particular, the complaint alleges that Defendants held a New Year’s Eve celebration for residents on December 31, 2020 that did not comply with their COVID-19 protocol and the standard of care for similarly situated assisted living facilities.”

Defendants’ motion to dismiss and their demurrer are before the court.

Pre-suit expert

“Defendants move this court to dismiss Plaintiff’s complaint on the ground that Plaintiff has not complied with Code § 8.01-50.1, which requires a plaintiff to obtain an expert opinion prior to bringing a wrongful death action against a health care provider. …

“There seems to be no dispute that Defendants operate an assisted living facility. Indeed, Defendants in their motion refer to the facility as an ‘assisted living facility.’ …

“And in their demurrer, they claim the benefit of statutory immunity extended to assisted living facilities.

“And based on the arguments that Defendants make in their reply brief, there also does not seem to be any dispute that an ‘assisted living facility’ is not a ‘nursing home’ within the meaning Subdivision (iv) of Code § 8.01-581.1.1

“Defendants instead contend that they fall within the definition contained in Subdivision (i) of health care provider because it could employ a registered nurse. Perhaps tellingly, Defendants do not expressly state that they did employ nurses at their facility, only that they could.

“Regardless, whether Defendants satisfy the definition of a health care provider under Subdivision

(i) is determined by the person against whom the plaintiff has filed her complaint and not by its employees. Turner v. Sheldon D. Wexler, D.P.M, P.C., 244 Va. 124, 128 (1992).

“This can be seen in Turner, where the Court ruled that the plaintiff had not made a claim against a health care provider because the professional corporation she had sued was not licensed to practice medicine despite the fact that the doctor who established the corporation was so licensed. …

“The question is whether Defendants’ facility ‘primarily renders health care services.’

“An assisted living facility does not. One only has to look at the statutory distinction between an assisted living facility and nursing homes.

“An assisted living facility ‘provides or coordinates personal and health care services, 24-hour supervision, and assistance (scheduled and unscheduled) for … the protection, general supervision and oversight of the physical and mental well-being of an individual who is aged or infirm or who has a disability.’ …

“A nursing home is a facility ‘in which the primary function is the provision, on a continuing basis, of nursing services and health-related services.’ Code § 32.1-123 (emphasis added). So while each facility renders health care services, only a nursing primarily does so. …

“In sum, Defendants are not a ‘health care provider’ as defined in Code § 8.01-581.1 because their facility is not a nursing home, they are not licensed as a hospital, and neither are they an entity which employs or engages a licensed health care provider and which primarily renders health care services.

“Accordingly, Plaintiff was not required to obtain an expert opinion prior to bringing her wrongful death action. For these reasons, the court denies Defendants’ motion to dismiss.”

Demurrer

“Defendants demur on the ground that they are immune under Code § 8.01-225.03, which provides certain immunity to assisted living facilities in relation to the COVID-19 public health emergency.”

Defendants have demurred to the entire complaint. “[T]hey did not demur to each act of alleged negligence. Their decision is significant because a demurrer goes to the whole of the pleading to which it is addressed.

“Where a complaint makes several claims, some of which are barred by statute and others not, a demurrer to the complaint ‘should be overruled if any part of the pleading states a cause of action upon which relief may be granted.’ …

“Therefore, it would be proper for the court to overrule the demurrer if Defendants would not be immune for their alleged act of breaching social distancing protocols. Accordingly, the court confines its analysis to just that allegation. …

“In my view, the language of the statute may be parsed to require five conditions for its application:

“1. Care was delivered or withheld from a patient, resident or person receiving services;

“2. The person was diagnosed as being or was believed to have been infected with the COVID-19 virus;

“3. The defendant was unable to provide the required level or manner of care to the person because of a resource shortage;

“4. The resource shortage was caused by the COVID-19 public health emergency; and

“5. The delivery or withholding of care resulted in the injury or wrongful death at issue. …

“The factual allegations of the complaint fail to establish conditions 2, 3, and 4.

“As Plaintiff points out, the complaint alleges that at the time Defendants failed to follow social distancing protocols (the withholding of care that allegedly resulted in the decedent’s death), the decedent was not believed to be infected with the COVID-19 virus.

“Further, Plaintiff characterizes her claim not as one based on the failure of staff to follow social distancing protocols to avoid exposure as opposed to Defendants having inadequate resources to prevent the spread of COVID-19 to residents.

“Admitting that insufficient availability of trained staff constitutes a resource shortage, the complaint does not allege that the reason Defendants were unable to enforce social distancing protocol was because of inadequate staffing.

“To the contrary, the complaint alleges that as of the date of the New Year’s Eve party, Defendants were continuing to enforce their COVID-19 protocol. … A fair inference from this allegation is that Defendants did have adequate resources to prevent social gatherings. …

“Defendants’ demurrer is entirely overruled.”

Clancy v. Tribute at One Loudoun, LLC et al., Case No. CL23000390-00, Nov. 17, 2023. Twentieth Judicial Circuit (Fleming Jr.). John S. Lopatto III, Katherine Rockwell for the parties. VLW 023-8-083, 11 pp.