Brady v. SSC Westchester Operating Co.
Decision Date | 09 April 2021 |
Docket Number | No. 20 CV 4505,No. 20 CV 4500,20 CV 4500,20 CV 4505 |
Citation | 533 F.Supp.3d 667 |
Parties | Loretta BRADY, as Attorney-in-Fact FOR Lottie SMITH, Plaintiff, v. SSC WESTCHESTER OPERATING COMPANY LLC, a Foreign Limited Liability Company d/b/a Westchester Health and Rehabilitation Center, Defendant. Eileen B. Walsh, as Independent Administrator for the Estate of Rita Saunders, Plaintiff, v. SSC Westchester Operating Company LLC, a Foreign Limited Liability Company d/b/a Westchester Health and Rehabilitation Center, Defendant. |
Court | U.S. District Court — Northern District of Illinois |
Bryan Anthony Ruggiero, Michael Frank Bonamarte, IV, Levin & Perconti, Chicago, IL, Robert S. Peck, Center for Constitutional Litigation, PC, Washington, DC, for Plaintiff.
Terrence S. Carden, III, Rebecca Coen Barnard, Carden & Tracy, LLC, Todd M. Porter, Patton & Ryan, Chicago, IL, for Defendant.
Lottie Smith and Rita Saunders, residents of a nursing home owned by defendant SSC Westchester Operating Company, both contracted COVID-19 in the early days of the pandemic. Smith recovered, but Saunders did not. Smith's daughter, plaintiff Loretta Brady, sues Westchester as her mother's attorney-in-fact, and Saunders's sister, plaintiff Eileen Walsh, sues Westchester on behalf of Saunders's estate. Brady and Walsh allege that Westchester violated the Illinois Nursing Home Care Act by knowingly exposing its residents to nursing staff who had tested positive for, or were displaying symptoms of, COVID-19, and failing to provide the nursing staff with personal protective equipment during March 2020. Brady also alleges that Westchester caused her mother to suffer a series of non-COVID-related injuries. Westchester moves to dismiss both complaints for failure to state a claim and to strike allegations in the complaints. For the reasons that follow, Westchester's motions to dismiss are denied, and its motions to strike are denied in part, granted in part.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). The complaint must contain "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In reviewing a motion to dismiss, I construe all factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Calderone v. City of Chicago , 979 F.3d 1156, 1161 (7th Cir. 2020). In resolving a 12(b)(6) motion, I may consider allegations in the complaint, documents attached to the complaint, documents that are both referred to in the complaint and central to its claims, and information that is subject to proper judicial notice. Reed v. Palmer , 906 F.3d 540, 548 (7th Cir. 2018) (quoting Geinosky v. City of Chicago , 675 F.3d 743, 745 n.1 (7th Cir. 2012) ).
Lottie Smith and Rita Saunders lived at Westchester Health and Rehabilitation Center, a long-term care facility. [1-1] ¶ 6; Dkt. 20-cv-4505, [1-1] ¶ 6. Between 2011 and 2019, the Illinois Department of Public Health cited Westchester 10 times for violating infection control procedures, such as hand hygiene and maintaining equipment to help prevent the spread of infection. [1-1] ¶¶ 77–84.
In November 2018, Smith, who required assistance with daily tasks like transfers, turning, and using the bathroom, fell and hit her head, requiring hospitalization. [1-1] ¶¶ 99, 103. She fell a second time the next month, again hitting her head. [1-1] ¶ 104. In February 2019, Smith developed an ulcer as a result of Westchester's failure to provide continence care, offloading, and turning and repositioning. [1-1] ¶ 105. Brady complained to IDPH about Westchester, prompting IDPH to conduct a site visit. [1-1] ¶¶ 106–07. Westchester found out Smith and her daughter had filed the complaint. [1-1] ¶ 108. In January 2020, Westchester staff didn't shower Smith for eight days, so she contracted a fungal infection that required antibiotic medication and treatments. [1-1] ¶ 109.
Between January and March 2020, the public began to learn about the COVID-19 pandemic. [1-1] ¶¶ 38–76. On January 24, a Chicago resident was confirmed to have the virus. [1-1] ¶ 44. On January 30, the World Health Organization declared the outbreak an international public health emergency. [1-1] ¶ 45. By February 28, a resident of a nursing home in Washington State had the virus. [1-1] ¶ 49. On March 4, the Administrator for the Centers for Medicare and Medicaid Services directed all healthcare providers to review their infection-control procedures. [1-1] ¶ 52. On March 9, the Governor of Illinois issued a disaster proclamation and executive order. [1-1] ¶ 53. That same day, CMS updated its COVID-19 guidance and advised that anyone experiencing signs of a respiratory infection while at work should stop work, put on a face mask, and isolate at home, among other things. [1-1] ¶ 54. On March 13, CMS provided guidance for infection control and prevention in nursing homes. [1-1] ¶ 57. Its memo directed homes to isolate potentially infected residents; screen all staff for symptoms at the beginning of each shift and, if anyone had symptoms, direct them to self-isolate at home; identify and restrict staff that worked at multiple facilities; and obtain supplies as soon as possible. [1-1] ¶ 57. On March 17, IDPH confirmed that multiple residents and staff at a Chicago-area nursing home had tested positive for COVID-19. [1-1] ¶ 60. That day, IDPH issued updated guidance for nursing homes; it recommended, among other things, that homes screen residents and staff for fever and respiratory systems. [1-1] ¶ 61.
On March 9, members of Westchester's nursing staff told nursing supervisors and the facility's administration that nurses were experiencing COVID-19 symptoms. [1-1] ¶ 111; Dkt. 20-cv-4505, [1-1] ¶ 92.
Over the next few days, two members of the nursing staff reported testing positive for COVID-19 to Westchester management, including one nursing assistant who also worked at another nursing home that was experiencing an outbreak. [1-1] ¶¶ 117–18; Dkt. 20-cv-4505, [1-1] ¶¶ 100, 102. Over the following few weeks, some nurses reported feeling sick to Westchester management. [1-1] ¶ 115. Westchester told its nursing staff, including those who had tested positive and the nursing assistant who worked in another facility, to continue reporting to work and caring for residents. [1-1] ¶¶ 112, 117–18; Dkt. 20-cv-4505, [1-1] ¶ 94. Another member of the nursing staff reported feeling sick and, when that person left the home to quarantine, Westchester fired them. [1-1] ¶ 119.
At some point in March, a member of the nursing staff reported to management that there were no personal protective masks in the facility's storage closet. [1-1] ¶ 136. Westchester did not provide its nursing staff or employees personal protective equipment at any point that month, including masks, gowns, or face shields. [1-1] ¶ 138.
On March 11, Saunders's medical chart reflected that she was asymptomatic. Dkt. 20-cv-4505, [1-1] ¶ 98. Three days later, a nurse wrote, "MD notified with orders to obtain stat chest xray." Dkt. 20-cv-4505, [1-1] ¶ 101. Around that time, Saunders told her doctors and family that she had developed a dry cough and shortness of breath, and complained of "generalized body pain." Dkt. 20-cv-4505, [1-1] ¶¶ 103–04. On March 20, Saunders asked Westchester for a COVID-19 test; Westchester refused, and told Saunders she did not have the virus. Dkt. 20-cv-4505, [1-1] ¶¶ 105–06. Three days later, Saunders's condition worsened, and she was hospitalized and diagnosed with acute hypoxia and respiratory failure. Dkt. 20-cv-4505, [1-1] ¶ 108. She died about a week later. Dkt. 20-cv-4505, [1-1] ¶ 112.
Smith, meanwhile, began to experience a dry cough, shortness of breath, sore throat, loss of appetite, and a high fever on March 20, and was hospitalized a few days later. [1-1] ¶¶ 2, 120–22. By March 27, at least 26 residents of the home had tested positive. [1-1] ¶ 123. By April 19, 43 residents had tested positive, and nine residents had died. [1-1] ¶ 139. By June 21, 44 residents had contracted COVID-19 and 12 had died. [1-1] ¶ 141.
Brady alleges that members of the Westchester nursing staff told other employees to "let" Smith fall so she would be discharged from the center. [1-1] ¶ 124. In late April, Smith fell and hit her head, causing a seizure. [1-1] ¶ 125. The next month, Smith fell four times. [1-1] ¶¶ 126–30. In June, the center administrator threatened to discharge Smith because Brady had complained to her mother, other residents, IDPH, and the media about abuse and neglect that she had observed at the home. [1-1] ¶¶ 132–34.
Brady and Walsh bring alternative claims for negligence and willful and wanton misconduct under the Illinois Nursing Home Care Act.2 Westchester argues that plaintiffs have failed to state a claim. It argues that the governor's executive orders confer immunity for negligence, so plaintiffs’ negligence claims must be dismissed, and that the Act does not create liability for "willful and wanton" conduct. Alternatively, Westchester argues that plaintiffs haven't sufficiently alleged willful misconduct. It also moves to strike some allegations in both complaints.
The purpose of the Illinois Nursing Home Care Act is to protect nursing home residents from inadequate, improper, and degrading treatment. Lakewood Nursing & Rehab. Ctr., LLC v. Dep't of Pub. Health , 2019 IL 124019, ¶ 20, 441 Ill.Dec. 824, 158 N.E.3d 229. To that end, the Act creates a regulatory scheme "to safeguard against abuse and neglect of residents." Id. It includes a residents’ bill of rights, guaranteeing nursing home residents the rights to be...
To continue reading
Request your trial