A ruling by a Newport News, Virginia judge illustrates one of the hurdles faced by lawyers seeking to sue over COVID-19 infections acquired in group facilities.

A wrongful death lawsuit claiming an unwritten no-mask policy at an assisted living facility led to a resident’s COVID-19 death must meet requirements for medical malpractice actions, the judge decided.

Circuit Judge Gary A. Mills dismissed the lawsuit for lack of an expert’s certification that the plaintiff’s virus exposure claim met the standard for medical negligence causing injury.

“This case highlights one of the legal issues of COVID-19 that will be litigated in the upcoming years – liability for health care providers,” Mills wrote.

He ruled that the allegation of infection from exposure to a COVID-positive staffer in a health care facility means the lawsuit is a medical malpractice action. Mills dismissed the suit for lack of an expert certification, but did so without prejudice, allowing the resident’s family another attempt to meet the pleading standard.

Mills’ March 30 opinion is Webb v. Patrick Henry Hospital Inc. (VLW 021-8-050).

Unmasked staffer

Loraine D. Goodwin, 81, was a resident of The Orchard at Warsaw, according to Mills’ opinion and online facility listings. The senior care home is owned by the defendant hospital. Goodwin’s estate is represented by Michael L. Donner Sr. of Glen Allen.

When the pandemic hit last year, patients like Goodwin were in “lockdown,” confined to their rooms without any visitors, the suit said. Goodwin initially showed no symptoms of the coronavirus, but she allegedly displayed symptoms on April 13.

Those symptoms arose only after contact April 6-10 with a staffer named Elisha, the suit contends.

The lawsuit says Elisha requested sick leave for a cough, but was denied when she acknowledged she did not have a fever. Not only did the nursing director order Elisha to come to work, she ordered health staffers not to wear masks when in contact with residents, the suit claimed.

That alleged no-mask order was “contrary to the Orchard’s knowledge of best practices at the time,” Mills said, describing the suit’s allegations.

“During the period of April 6-10, Elisha went into Ms. Goodwin’s room several times without a mask and had direct contact with Ms. Goodwin,” Mills wrote, summarizing the complaint.

Goodwin was transported to two hospitals in succession as her treatment intensified. She died at Mary Washington Hospital in Fredericksburg on May 2.

Claim sounds in medical negligence

Represented by Kathleen M. McCauley of Richmond, the facility’s owner contended the case raised a claim of medical malpractice, subject to the strictures of the Virginia Medical Malpractice Act. Lacking an expert certification as to negligence and causation, the case should be dismissed, the hospital claimed.

Virginia Code § 8.01-20.1 generally requires a plaintiff, before serving a defendant, to obtain a written expert opinion that the defendant “deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed.”

On behalf of the estate, Donner argued the facts were comparable to a sexual assault by a health care staffer, actions that did not implicate medical negligence issues.

But Mills concluded the case cleanly fit the pattern for medical malpractice, with Elisha acting as a healthcare provider when she came into contact with Goodwin, attending to “patient care with patients.”

“This situation is the exact situation the Virginia Medical Malpractice Act addresses,” the judge wrote. A closer analogy would be an infection from surgery, the judge reasoned. He granted the hospital’s motion to dismiss for lack of expert certification, but did so “without prejudice.”

Mills emphasized that he was not ruling on whether medical malpractice occurred or whether the defendant was liable.

“The sole issue before the Court is whether this case should be brought under Virginia’s Medical Malpractice Act,” he wrote in a footnote.

Both Donner and McCauley declined to comment.

In April of last year, Gov. Ralph Northam sought to reinforce statutory protections for health care providers with his Executive Order 60 that purports to limit liability for staff shortages and equipment limitations.

The order made clear that Northam considered the pandemic to have triggered the disaster immunity provisions of Va. Code §§ 8.01-225.01 and 225.02.

At the time the order was entered, some plaintiffs’ lawyers saw little value in COVID claims because of the difficulty of linking a single patient’s infection with specific negligent practices. Webb is one of the first cases to produce an opinion on the challenges for plaintiffs.