September 26th, 2022 by Rieders Travis in Medical Malpractice

Testa v. Broomall, Pa. Civil No. 21-5148-KSM (E.D. Pa. August 18, 2022) (Marston, J.)  COVID-19 death case in a nursing home.  Motion to dismiss denied.  The claim was based upon the fact that although decedent tested positive for COVID-19, she was permitted to travel out of her room to interact with other residents and to get her nails done while she was placed in isolation.  She had a “window visit” with her mother, who noticed she was having difficulties.  She eventually passed away from the infection.  The defense was the Pennsylvania Emergency Management Services Code.  The court looked at the PREP Act.  The defendant argued that PREP immunized  the facility from liability, or in the alternative that the PREP Act preempts the claims.  Although the PREP Act immunizes individuals who use covered countermeasures, it does not shield individuals who failed to use covered countermeasures.  The claims all relate to non-use of covered countermeasures.  Therefore, the PREP Act does not shield Broomall from liability.  To the extent that the nursing home argues the PREP Act completely preempts any state law claims, including negligence claims, the argument fails.  The Third Circuit addressed this issue in the Maglioli case and held otherwise.  The PREP Act does not completely preempt state law.  It only preempts those that fall within Congress’s narrow cause of action for willful misconduct.  Maglioli, 16 F.4th at 412.  This case involved state law claims and wrongful death claims.  There is no claim for willful misconduct.  Therefore, the PREP Act does not preempt claims.  Whether the Pennsylvania Emergency Management Services Code immunizes the Commonwealth against negligence claims related to the provision of “emergency services” is a matter of first impression.  35 Pa. C.S.A. § 7704(a).  The parties argued that the Governor’s Order shields the nursing home from liability.  The language of the order made it clear that it immunizes only individuals and not entities.  For that reason, the nursing home’s motion to dismiss is denied.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]



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