PITTSBURGH – A physical therapist and her employer argue that they are immune from a lawsuit brought by a Bethel Park couple, who alleged that an at-home their negligence in conducting therapy without making use of personal protective equipment led to both of them contracting COVID-19.
John Boyle and Cheryl McKinney of Bethel Park first filed suit in the Allegheny County Court of Common Pleas on April 20 versus Judith Meyer and Orthopedic & Sports Physical Therapy Associates, Inc., of Charleroi.
The suit explained Meyer was employed by OSPTA as an at-home physical therapist and outlines the background of the COVID-19 pandemic, noting that the majority of the virus’s fatalities were among the elderly population and those with underlying medical complications – along with methods of prevention, such as the use of masks, gloves and other PPE.
“Boyle and McKinney are both of an advanced age and suffer from various physical ailments. At the time of the incident, Boyle was recovering from a recent open-heart surgery. As a result of his open-heart surgery, Boyle was required to take physical therapy. In order to reduce the likelihood of contact with any individuals outside of his residence, Boyle arranged for physical therapy at his home with defendant OSPTA,” the suit stated.
“On Nov. 8, 2020, defendant-therapist, working for defendant OSPTA, arrived at Boyle’s home in Allegheny County to provide at-home physical therapy to Boyle. Upon arrival, defendant-therapist was not wearing gloves, a face shield, or an appropriate face mask; defendant-therapist only had a thin, disposable surgical mask. Defendant-therapist immediately shook Boyle’s hand, despite not having gloves or other appropriate protective equipment. Defendant-therapist did not wash her hands upon arrival or before performing physical therapy on Boyle. Defendant-therapist touched numerous other surfaces and objects in the plaintiff’s home.”
Meyer, acting within the scope of her employment with OSPTA, provided the above-discussed physical therapy to Boyle. She was also supposed to provide physical therapy for Boyle the following Thursday, but she was not present and another professional provided physical therapy for Boyle instead.
“On Nov. 14, 2020, defendant-therapist called Boyle and McKinney and informed them that she and her son had both tested positive for COVID-19. Shortly thereafter, both Boyle and McKinney developed symptoms associated with COVID-19. Boyle and McKinney’s symptoms include, but are not limited to: Severe respiratory trauma, fever and chills, a persistent, painful cough, fatigue and shortness of breath, muscle and body aches, headache, chest pain and pressure and other flu-like symptoms,” per the suit.
“As a result, Boyle and McKinney were both admitted to the hospital and were put on oxygen on Nov. 19, 2020. Boyle returned home on Nov. 29, 2020, and McKinney returned home on Nov. 28, 2020. Boyle and McKinney continue to suffer adverse effects associated with the disease, and Ms. McKinney still relies on an oxygen tank to breathe. Neither Boyle nor McKinney had outside contact with any individual other than Judith Meyers during this time.”
Counsel for the defendants filed to remove the case to the U.S. District Court for the Western District of Pennsylvania on May 24, holding that the case contained questions of federal law which made such a removal appropriate.
“Removal to this Court is appropriate because plaintiffs’ claims involve a federal question under the Public Readiness and Emergency Preparedness Act and under the federal officer removal statute,” the removal motion stated.
“Here, plaintiffs’ negligence claims are completely preempted by the PREP Act as they are based solely on the countermeasures employed by defendants. The PREP Act provides an exclusive federal cause of action for claims arising out of or relating to the administration and use of covered countermeasures, and it prescribes the procedures and remedies governing that cause of action. It thus completely preempts state law causes of action, such as negligence, relating to those claims.”
UPDATE
Counsel for the defendants filed a motion to dismiss the lawsuit and an accompanying brief on June 22, charging that they are immune from the litigation under the PREP Act.
“Taken as true, plaintiffs’ complaint alleges nothing more than defendants’ inappropriate use of personal protective equipment and ineffective management of a COVID-19 infection control program in violation of federal guidelines issued by the U.S. Centers for Disease Control. Defendants are immune from such claims under the federal Public Readiness and Emergency Preparedness Act,” the motion to dismiss stated, in part.
“Congress has declared that healthcare providers, who are working tirelessly to provide healthcare services amidst the COVID-19 global pandemic, are entitled to protection from lawsuits that second guess the manner in which they have administered countermeasures during this national public health emergency. The broad application of the PREP Act provides immunity to ‘covered persons,’ such as defendants, related to the administration and/or use of ‘covered countermeasures,’ including use of PPE and the establishment of COVID-19 infection control programs.”
The defendants said this immunity is “necessary so that individuals and organizations in our healthcare system can continue to provide care, while doing their best to prevent the spread of the disease in the face of the continuously evolving recommendations from the CDC and other public health officials”, and that the filing of state law negligence claims in this case was an “artful” pleading.
For counts of negligence and negligence (respondeat superior), the plaintiffs are seeking damages in excess of $35,000, plus interest, costs, reasonable attorney’s fees and other such relief as is appropriate.
The plaintiffs are represented by John P. Corcoran Jr. and Mark E. Casper Jr. of Jones Gregg Creehan & Gerace, in Pittsburgh.
The defendants are represented by Patrick L. Mechas and Allison M. Erndl of Burns White, in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-00694
Allegheny County Court of Common Pleas case GD-21-004147
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com