Lp Columbia Ky, LLC D/B/A Signature Healthcare at Summit Manor Rehab & Wellness Center v. Estate of Winfred Cowan, by and Through Its Administratix, Denesa McCann

RENDERED: APRIL 21, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0488-MR
LP COLUMBIA KY, LLC D/B/A
SIGNATURE HEALTHCARE AT
SUMMIT MANOR REHAB &
WELLNESS CENTER AND
SIGNATURE HEALTHCARE, LLC APPELLANTS
APPEAL FROM ADAIR CIRCUIT COURT
v. HONORABLE JUDY VANCE MURPHY, JUDGE
ACTION NO. 20-CI-00077
ESTATE OF WINFRED COWAN, BY
AND THROUGH ITS
ADMINISTRATRIX, DENESA
MCCANN; BILLIE B. CROSBY, BY
AND THROUGH HIS ATTORNEY-
IN-FACT, DEBRA HARRELSON;
EDNA MELSON, BY AND
THROUGH HER ATTORNEY-IN-
FACT, DONNIE MELSON; ESTATE
OF ADDIE DERRINGER, BY AND
THROUGH ITS ADMINISTRATRIX,
AMANDA WETHINGTON; ESTATE
OF ANNA MARIE HELM, BY AND
THROUGH ITS ADMINISTRATOR
LARRY HELM; ESTATE OF
CARLINA HARRISON, BY AND
THROUGH ITS ADMINISTRATRIX,
JENNIFER WOLSEY; ESTATE OF
CAROLYN SUE MCGAHA, BY AND
THROUGH ITS ADMINISTRATRIX
VICKI HATCHER; ESTATE OF
EMMA RODGERS, BY AND
THROUGH ITS ADMINISTRATOR,
DONNIE RAY SMITH; ESTATE OF
SANDRA R. SHARPE, BY AND
THROUGH ITS EXECUTRIX,
KATHY DOWNEY; ESTATE OF
VIRGINIA LEE ROWE, BY AND
THROUGH ITS ADMINISTRATRIX,
LISA WALKUP; AND NOREEN
HARMON, BY AND THROUGH HER
POWER OF ATTORNEY, CLIFFORD
HARMON APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
THOMPSON, CHIEF JUDGE: LP Columbia KY, LLC, et al., appeal from an
order of the Adair Circuit Court which denied their motion to dismiss. This is an
interlocutory appeal as the motion to dismiss was made under the theory that
Appellants were immune from the lawsuit. Appellants argue they are immune
from suit and that the trial court should have dismissed the case. Appellees,
various executors and representatives, argue that dismissal at this stage is
premature and we should affirm the trial court’s judgment. We agree with
Appellees and affirm.
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FACTS AND PROCEDURAL HISTORY
This case revolves around a number of residents of the Summit Manor
Rehab and Wellness Center who got sick or died after contracting COVID-19.
Appellees filed the underlying cause of action on June 19, 2020. The complaint
was then amended twice. Appellees raised various causes of action: negligence,
reckless conduct, negligence per se, wrongful death, breach of contract, and
violations of Kentucky Revised Statutes (KRS) 216.515.1 The allegations in the
complaint revolve around the residents getting sick from COVID-19 while at the
care facility. While not specifically stated in the complaint, it is clear that
Appellees are alleging that Appellants did not follow COVID-19 safety protocols,
and this led to the injuries suffered.
Appellants eventually brought a Kentucky Rules of Civil Procedure
(CR) 12.02(f) motion to dismiss for failure to state a claim upon which relief can
be granted.2 Appellants argued that they were immune from suit due to the Public
Readiness and Emergency Preparedness Act (the PREP Act) found in 42 U.S.C.3 §
247d-6d. That act says in pertinent part:
1
KRS 216.515 lists the rights residents of long-term care facilities have and sets forth a cause of
action should those rights be violated.
2
Prior to bringing the motion to dismiss, Appellants tried to get the case moved to federal court.
The United States District Court for the Western District of Kentucky denied the removal to
federal court and remanded it back to the Adair Circuit Court.
3
United States Code.
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(a) Liability protections
(1) In general
Subject to the other provisions of this section, a
covered person shall be immune from suit and
liability under Federal and State law with respect
to all claims for loss caused by, arising out of,
relating to, or resulting from the administration to
or the use by an individual of a covered
countermeasure[.] . . .
(2) Scope of claims for loss
(A) Loss
For purposes of this section, the term “loss” means
any type of loss, including–
(i) death;
(ii) physical, mental, or emotional injury,
illness, disability, or condition;
(iii) fear of physical, mental, or emotional
injury, illness, disability, or condition,
including any need for medical monitoring;
and
(iv) loss of or damage to property, including
business interruption loss.
Each of clauses (i) through (iv) applies without
regard to the date of the occurrence, presentation,
or discovery of the loss described in the clause.
(B) Scope
The immunity under paragraph (1) applies to any
claim for loss that has a causal relationship with
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the administration to or use by an individual of a
covered countermeasure, including a causal
relationship with the design, development, clinical
testing or investigation, manufacture, labeling,
distribution, formulation, packaging, marketing,
promotion, sale, purchase, donation, dispensing,
prescribing, administration, licensing, or use of
such countermeasure.
42 U.S.C. § 247d-6d. The PREP Act goes into effect when the United States
Department of Health and Human Services Secretary declares a public health
emergency. The COVID-19 pandemic was declared such an emergency.
In the motion to dismiss, Appellants claimed they were covered by
this immunity because they were a medical facility that was using COVID-19
countermeasures. Appellees argued that they were not arguing that Appellants’
actions in using the COVID-19 countermeasures caused the injuries suffered, but
that Appellants’ inaction caused the injuries; therefore, the PREP Act does not
apply. Appellees also argued that this case was about regular medical neglect, and
does not involve activities used to treat the COVID-19 virus.
The trial court ultimately reviewed the motion to dismiss as a motion
for summary judgment because Appellants referenced materials in the motion that
were not already in the record. The trial court ruled in favor of Appellees. The
court held that summary judgment was premature at this stage and discovery
needed to occur. The primary issue for the trial court was that Appellants were
arguing their use of COVID-19 countermeasures entitled them to immunity, but
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Appellees are arguing that their causes of action have nothing to do with the use of
countermeasures. The court believed discovery was needed to flesh out the facts
of the case. This appeal followed.
ANALYSIS
Before we get to the issues raised by Appellants, we must first address
an argument made by Appellees. Appellees argue that this Court does not have
jurisdiction to address this appeal. Citing CR 54.01, Appellees argue that the order
denying the motion to dismiss is not a final order because it does not adjudicate all
the issues before the court. In addition, while the case of Breathitt County Board
of Education v. Prater, 292 S.W.3d 883, 886-87 (Ky. 2009), allows an appeal from
an interlocutory order denying a claim of absolute immunity, more recent
Kentucky Supreme Court precedent has held that not all claims of immunity are
entitled to an interlocutory appeal. In order for an immunity issue to be
immediately appealable, it must meet the following criteria: “the interlocutory
order must (1) conclusively decide an important issue separate from the merits of
the case; (2) be effectively unreviewable following final judgment; and (3) involve
a substantial public interest that would be imperiled absent an immediate appeal.”
Sheets v. Ford Motor Company, 626 S.W.3d 594, 599 (Ky. 2021) (citation
omitted).
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We believe all three criteria are met in this case. First, the immunity
issue is separate from the causes of action raised in this case. Second, the PREP
Act allows not only immunity from liability, but immunity from suit. Immunity
from suit includes protection from the costs and burdens of a trial. Prater, 292
S.W.3d at 886. If we did not review this immunity issue now, Appellants would
have to expend time and money litigating and would not be able to recover these
costs on appeal. Finally, this case involves a substantial public interest. It revolves
around a global pandemic which affected many Kentuckians. It also concerns a
federally created statutory right to immunity that can only be activated under
emergency circumstances. Furthermore, due to the large number of COVID-19
deaths in medical facilities across Kentucky, this case, and the questions revolving
around the immunity issue, may provide valuable insight to future lawsuits arising
from the COVID-19 pandemic. We believe the criteria for interlocutory appeal are
met in this case; therefore, we will review the appeal on the merits.
We now move on to the standard of review for this case. Appellants
request that we review pursuant to the motion to dismiss standard of review.
Appellees believe we should review it as a motion for summary judgment as was
done by the trial court. We agree with Appellees. Appellants’ motion to dismiss
included materials which were not part of the record. Such materials included
arbitration agreements, newspaper articles, materials from the United States Food
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and Drug Administration, and materials from the United States Department of
Health and Family Services. CR 12.02 states that if a motion is made to dismiss a
case for failure to state a claim upon which relief can be granted and the motion
includes matters outside of the record, it should be treated as a motion for summary
judgment. That was done here and we believe such an act was appropriate.
The standard of review on appeal of a summary
judgment is whether the trial court correctly found that
there were no genuine issues as to any material fact and
that the moving party was entitled to judgment as a
matter of law. . . . “The record must be viewed in a light
most favorable to the party opposing the motion for
summary judgment and all doubts are to be resolved in
his favor.” Summary “judgment is only proper where the
movant shows that the adverse party could not prevail
under any circumstances.” Consequently, summary
judgment must be granted “[o]nly when it appears
impossible for the nonmoving party to produce evidence
at trial warranting a judgment in his favor[.]”
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citations omitted).
“Because summary judgment involves only legal questions and the existence of
any disputed material issues of fact, an appellate court need not defer to the trial
court’s decision and will review the issue de novo.” Lewis v. B & R Corporation,
56 S.W.3d 432, 436 (Ky. App. 2001).
The trial court believed summary judgment was premature at this
point as discovery was needed. The court held that there are issues of material fact
that need to be determined. We agree. As previously mentioned, there are two
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theories concerning this case. Appellees claim that this case was not about
COVID-19 countermeasures, but about general medical neglect. Appellants
believe that the case revolves around their use of COVID-19 countermeasures.
Both are plausible based on the reading of the complaint; therefore, more discovery
is needed to determine the facts of this case.
In addition, it is not possible to determine at this juncture if the PREP
Act immunity applies. Appellants claim it does because they used
countermeasures to help combat COVID-19 and the injuries and deaths
complained of were due to COVID-19. We believe more discovery is required to
determine if the immunity applies. Federal courts interpreting the PREP Act have
held that the immunity provision does not apply when there is a failure to use
COVID-19 countermeasures. In other words, the immunity generally does not
apply to inaction. See Lyons v. Cucumber Holdings, LLC, 520 F. Supp. 3d 1277,
1285-86 (C.D. Cal. 2021); Robertson v. Big Blue Healthcare, Inc., 523 F. Supp. 3d
1271, 1282-83 (D. Kan. 2021); Estate of Maglioli v. Andover Subacute
Rehabilitation Center I, 478 F. Supp. 3d 518, 531-32 (D.N.J. 2020). On the other
hand, the immunity has been found to apply to inaction under certain
circumstances.
Where there are limited Covered Countermeasures, not
administering a Covered Countermeasure to one
individual in order to administer it to another individual
can constitute “relating to . . . the administration to . . . an
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individual” under 42 U.S.C. 247d-6d. For example,
consider a situation where there is only one dose . . . of a
COVID-19 vaccine, and a person in a vulnerable
population and a person in a less vulnerable population
both request it from a healthcare professional. In that
situation, the healthcare professional administers the one
dose to the person who is more vulnerable to COVID-19.
In that circumstance, the failure to administer the
COVID-19 vaccine to the person in a less-vulnerable
population “relat[es] to . . . the administration to” the
person in a vulnerable population. The person in the
vulnerable population was able to receive the vaccine
only because it was not administered to the person in the
less-vulnerable population. Prioritization or purposeful
allocation of a Covered Countermeasure, particularly if
done in accordance with a public health authority’s
directive, can fall within the PREP Act and this
Declaration’s liability protections.
Lyons, 520 F. Supp. 3d at 1282 (citation omitted).
Assuming this case revolves around COVID-19 countermeasures in
the rehabilitation center, discovery is required to determine if Appellants did not
use proper COVID-19 countermeasures, and if they did not, then was it due to
negligent inaction or prioritization and purposeful allocation?
CONCLUSION
Based on the foregoing, we affirm. The trial court was correct that
discovery is required and summary judgment would be premature.
ALL CONCUR.
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BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
John David Dyche John A. Bahe
Leigh V. Graves Patrick E. Markey
Louisville, Kentucky Louisville, Kentucky
John C. Miller Derrick G. Helm
John B. Jessie Jamestown, Kentucky
Campbellsville, Kentucky
James Looper
T. Andrew Graham
New York, New York
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