Physical therapy company says federal act protects it from covid-19 lawsuit

A physical therapy agency claimed in a federal court filing this week that it is immune to a lawsuit filed by a Bethel Park couple alleging they contracted covid-19 because of a therapist’s failure to properly use personal protective equipment in November.

John Boyle and Cheryl McKinney filed their complaint alleging negligence against OSPTA Home Care & Hospice in Allegheny County Common Pleas Court, but it was removed to federal court in May.

Boyle was required to have physical therapy following open-heart surgery last fall. He claimed in the lawsuit that when his therapist arrived at his home on Nov. 8, she was not wearing gloves or a face shield, and only a thin, disposable surgical mask.

The complaint alleges that the therapist shook Boyle’s hand and did not wash her own hands prior to beginning therapy.

Six days later, she called the couple and told them that both she and her son had tested positive.

Boyle and McKinney became ill a short time later, and both had to be hospitalized for more than a week, the lawsuit said.

However, in their motion to dismiss the complaint, OSPTA’s attorneys said that the health care agency is protected by the federal Public Readiness and Emergency Preparedness Act, authorized last year in response to the covid-19 pandemic.

The PREP Act, the filing said, is designed to remove liability concerns from health care providers as they attempt to stop the spread of the virus.

At most, OSPTA said, the lawsuit alleges inappropriate use of PPE and ineffective management of a covid-19 infection control program.

“Congress has declared that health care providers, who are working tirelessly to provide health care 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 filing said.

“This immunity is necessary so that individuals and organizations in our health care 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,” the filing added.

The company said that since the start of the pandemic, the U.S. Department of Health and Human Services has issued a number of statements and advisory opinions making it clear that neither businesses nor individuals can be held civilly liable when improper protective measures lead to virus transmission.

“All of this is underscored by the fact that plaintiffs are seeking to hold defendants liable for the alleged transmission of a disease that experts from the public health community have struggled with and failed to contain, and which has generated a constantly evolving set of recommendations and guidance,” the company said.

The filing also notes that Congress created an administrative remedy for claims like the one filed by the couple. When the covid-19 declaration was made, an emergency fund was created under the PREP Act “for purposes of providing timely, uniform and adequate compensation to eligible individuals for covered injuries,” the filing said.

Because the plaintiffs failed to exhaust that administrative remedy, the filing said, the lawsuit should be dismissed.