Delaware County, Pennsylvania, submitted a motion to dismiss a wrongful death lawsuit against the county-owned Fair Acres Geriatric Center.  However, its motion was denied.  U.S. District Judge Paul S. Diamond found the county “could not rely on the Public Readiness and Emergency Preparedness (PREP) Act in seeking to dismiss claims.”A lawsuit was filed after the coronavirus pneumonia death of Christopher Beaty Jr. and Nichole Garcia’s father.  The plaintiffs have arrested the county and the facility did not take precautionary measures to prevent the death of their father.  Their complaint, filed in the U.S. District Court for the Eastern District of Pennsylvania by attorney Stephen J. Pokiniewski, specifically alleges Delaware County “failed to design or enact policies to limit the spread of the virus in the county-run facility, leading to the death of 63-year-old Christopher Beaty Sr. after he was exposed to COVID-19 through his roommate.”While Fair Acres, according to the complaint, restricted visitor access to the facility beginning in March 2020 due to the pandemic, residents remained untested until late May 2020.  Beaty Sr. had been a resident of Fair Acres for fifteen years. He had underlying health issues that caused the family to make the decision to move him into the center.

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On June 1, Beaty Sr. allegedly “notified staff that his roommate was sick and exhibiting COVID-19 symptoms.  Although decedent’s roommate exhibited symptoms of COVID-19, while decedent and his roommate’s COVID tests were pending, they remained in the same room and in close proximity to each other.  Later, on June 1, 2020, Fair Acres contacted plaintiffs and indicated that decedent had contracted a low-grade fever, which can be a symptom of COVID-19,” according to court documents.Beaty Sr. tested negative for COVID-19 on June 2 even though he was exhibiting symptoms.  However, his roommate tested positive and was removed from the room.  On June 3, Beaty Sr. was admitted to Riddle Hospital, testing positive for COVID-19, and was diagnosed with “pneumonia, respiratory failure, a urinary tract infection, loss of motor function, wheezing and shortness of breath.”  He passed away three days after being admitted.The suit claims Fair Acres and Delware County “negligently, grossly negligently, recklessly, willfully and wantonly breached their duties to Beaty Sr” by their “failure to establish and maintain an infection prevention program; allowing infected staff to interact with residents; failing to routinely test and isolate infected residents; failing to request assistance from proper authorities when it became clear COVID-19 was quickly spreading through the facility; and failing to timely and accurately communicate with family members of residents about the infection rate at Fair Acres.”Delaware County’s motion argued the PREP Act allows the county to have immunity from liability.  The act offers “immunity from liability for claims of loss caused, arising out of, relating to, or resulting from administration or use of countermeasures to diseases, threats and conditions determined by the Secretary to constitute a present, or credible risk of a future public health emergency to entities and individuals involved in the development, manufacture, testing, distribution, administration, and use of such countermeasures.”  However, Judge Diamond responded the measure “relates only to affirmative actions taken, not the absence of actions, such as an alleged failure to take preventive measures.”  He continued in his response, “At the very least, plaintiffs have adequately pled deliberate indifference, alleging that: Decedent suffered from comorbidities of which defendant was aware, making him vulnerable to COVID-19 infection; the World Health Organization declared COVID-19 a global pandemic some three months before decedent contracted the virus; and defendant nonetheless failed to take action to protect decedent from COVID infection, which then caused his death.”

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Judge denies dismissal of Fair Acres COVID suitPublic Readiness and Emergency Preparedness ActFair Acres, Delaware County sued over COVID death