The Potential Watering Down of County Immunities and the Impact of Federal Legislation on Nursing Homes

Pennsylvania – Long-Term Care

In a case of first impression, the court in Grammer v. John J. Kane Regional Centers - Glen Hazel, 570 Fed. 3d 520 (3rd Cir. 2009), cert. denied 130 S. Ct. 1524 (2010) found that the statutory provisions of the Federal Nursing Homes Reforms Amendments Act (FNHRA), which the suit sought to enforce, met the requirements for conferring individual rights enforceable under 42 USC 1983. In Grammer, the plaintiff alleged that the nursing home resident, as a result of the nursing home's failure to provide proper care, developed decubitus ulcers, became malnourished and eventually developed sepsis, from which she died. The plaintiff further alleged that the nursing home deprived her of her civil rights by breaching a duty to ensure quality care under the Ominbus Budget Reconciliation Act of 1987 (OBRA) and, more specifically, FNHRA thereto. The nursing home filed a motion to dismiss, arguing that FNHRA did not provide a right that was enforceable through 42 USC §1983, and the District Court agreed.

On review, the appeals court reversed because it concluded that the language set forth in FNHRA was sufficiently "right creating" and the right conferred by its various provisions was neither vague, nor amorphous, nor did it impose upon states a mere precatory obligation. Further, the court concluded that 42 USC §1983 provided the proper venue for relief because the nursing home failed to demonstrate that Congress foreclosed that option by adopting another "more comprehensive enforcement scheme." According to the appeals court, Congress intended to create individual rights in drafting and adopting FNHRA, and the resident fell squarely within the zone of interest these provisions were meant to protect. Hence, the court found that the statutory provisions which the suit sought to enforce met the requirements for conferring individual rights enforceable under 42 USC §1983. Therefore, the appeals court reversed the decision of the district court, dismissing the suit and remanded the case to the district court.

In the court's analysis, it was stressed that actions for violations of federal law under 42 USC §1983 are presumptively available against individuals "acting under color of state law." The court stated that the distinction between implied private rights of action and §1983 private rights of action rest not in the articulation of rights but in the availability of a remedy. As FNHRA did not provide for a remedy, the plaintiff sought redress under 42 USC §1983. In its opinion, the court, however, never addressed whether the nursing home was "acting under color of state law." As such, it can only be assumed that the court determined that the nursing home was "acting under the color of state law" given that the nursing home was county-owned and run. Nevertheless, establishing whether an individual was acting "under the color of state law" is a prerequisite to establishing a prima facie case under §1983 and as such must be analyzed in each case. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55, 101 L. Ed. 2d 40, 48 (1988).

Based on Grammer and the requirements of 42 USC §1983, it is unlikely that a private nursing home would be deemed to be acting "under the color of state law." Therefore, Grammer seems to only apply to county-owned and run nursing homes. In addition, Grammer provides plaintiffs an avenue to circumvent the immunity afforded to county-owned and run nursing homes under the Political Subdivision Tort Claim Act and assert a claim for medical malpractice or professional negligence.

Generally, local and city-owned nursing homes are immune from medical and/or professional liability. Pursuant to the Political Subdivision Tort Claims Act, 42 Pa. C.S. §§8541-64, "[N]o local agency shall be liable for any damages on account of any injury to a person or property caused by an act of the local agency or an employee thereof or any other person. 42 Pa. C.S. 8541. The code broadly defines a 'local agency' as a 'government unit other than the Commonwealth government.'" Under this definition, the counties are considered "local agencies."

There are clear enumerated limited acts of the local agency that may impose liability on that agency and are clearly set forth by Tort Claims Act. 42 Pa. C.S. 8542(b)(emphasis added). Medical and/or professional negligence is not covered by any of the exceptions to governmental immunity provided under the Tort Claims Act. Additionally, the Pennsylvania Legislature has not waived governmental immunity for medical negligence or even general negligence that does not fall into one of the delineated exceptions. Therefore, local agencies, including counties, are immune from medical negligence liability.

Under the new line of cases, in the U.S. District Courts, many of the county-owned nursing homes will be subject to litigation involving alleged medical malpractice associated with the failure to comply with the requirements set forth in FNHRA. In addition, these actions brought pursuant to 42 USC §1983 have the potential for larger verdicts as the plaintiffs will be entitled to recoup attorney's fees. It should be noted that there is a split among the circuit courts as to whether FNHRA confers individual rights enforceable under 42 USC §1983. Thus, it is anticipated that this issue will eventually be addressed by the Supreme Court.

Defense Digest, Vol. 17, No. 2, June 2011