Suit against COVID-wracked Westchester nursing home can continue despite Pritzker’s immunity order, judge says

Westchester Health and Rehabilitation is being sued by the families of two women who infected while living there. One was among 12 residents who died there last year of COVID.

By Frank Main

Lottie Smith after suffering a fall in late May 2020. Her daughter is suing the Westchester nursing home where she’s a resident.

A lawsuit against a west suburban nursing home where 12 people died last year from coronavirus can go forward despite Gov. J.B. Pritzker’s executive order last year granting privately owned nursing homes broad protection against being sued over COVID-19 illnesses, a federal judge has ruled.

Westchester Health and Rehabilitation Center — which had 46 reported coronavirus cases last year — is being sued by the families of Rita Saunders and Lottie Smith, who contracted the virus while living there in March 2020.

Saunders, 64, was hospitalized March 23, 2020, and died about a week later.

Smith, 83, entered the hospital a day earlier and recovered. She says she suffered falls that the nursing home allowed to happen because she’d complained about conditions in the facility.

According to the lawsuit, Westchester knowingly exposed residents to employees who had tested positive for the coronavirus. The suit says nurses with symptoms of the illness were ordered to keep working, and the facility failed to provide them with personal protective equipment.

Westchester wanted a federal judge to dismiss the lawsuit because the governor’s March 9, 2020, coronavirus disaster proclamation gave nursing homes immunity over negligence and didn’t create liability for “willful and wanton” misconduct.

But U.S. District Judge Manish Shah said the lawsuit can continue, quoting a Seventh U.S. Circuit Court of Appeals ruling that found that “an immunity defense usually depends on the facts of the case.”

Screen_Shot_2021_04_12_at_3.11.00_PM.png — Westchester Health and Rehabilitation Center

“There are outstanding factual issues to resolve,” Shah wrote. “For example, the executive order protects healthcare facilities from liability for death or injuries that occur while the facility ‘was engaged in the course of rendering assistance to the state’ by ‘providing health care services in response to the COVID-19 outbreak.’ ”

Shah noted that the lawsuit says Westchester failed to protect residents from infected nursing staff members.

“There’s a difference between allowing the virus to spread by taking no preventative measures and spreading the virus while affirmatively treating it or trying to prevent spread,” he wrote, adding that the families suing the nursing home “have plausibly alleged that Westchester engaged in willful misconduct.”

The Chicago Sun-Times reported last May that Westchester had Medicare’s lowest rating — one star out of a possible five and that low-rated nursing homes in Cook County had fared the worst for COVID deaths.

On May 6, 2020 — less than two months after Saunders died — Cook County Commissioner Brandon Johnson held a news conference outside the nursing home to draw attention to its problems.

Afterward, a Westchester spokeswoman said workers’ health was being evaluated after each shift, visits were being restricted, and personal protective equipment was being provided.

Another company has taken over operating Westchester and declined to comment Monday.