Brandywine Nursing and Rehabilitation Center, Inc. v. Terri Hansen, Personal Representative of the Estate of Charles Secret, at al.

• Court: Supreme Court of Delaware
• Decided: March 16, 2023
• Docket: 59, 2023
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

BRANDYWINE NURSING AND § REHABILITATION CENTER, § INC., a Delaware corporation, § No. 59, 2023 § Defendant Below, § Court Below—Superior Court Appellant, § of the State of Delaware § v. § C.A. No. N21C-03-233 § TERRI HANSEN, Personal § Representative of the Estate of § CHARLES SECREST and § BEVERLY SHINNIN, Personal § Representative of the Estate of § SOPHIA STAR SAKEWICZ, § § Plaintiffs Below, § Appellees. §

Submitted: February 24, 2023 Decided: March 16, 2023

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

Upon consideration of the notice of interlocutory appeal, the supplemental

notice of interlocutory appeal, and the exhibits, it appears to the Court that:

(1) On March 23, 2021, plaintiffs below-appellees Terri Hansen, personal

representative of the estate of Charles Secrest, and Beverly Shinnin, personal

representative of the estate of Sophie Star Sakewicz, (“Personal Representatives”)

filed a medical negligence action against defendant below-appellant Brandywine Nursing and Rehabilitation Center, Inc. (“BNR”) in the Superior Court. Secrest and

Sakewicz were elderly residents of BNR when they died from complications of

COVID-19 in 2020. The Personal Representatives alleged that BNR: (i) failed to

hire, train, or direct staff as to the appropriate protocol to follow during the COVID-

19 pandemic; (ii) failed to follow CDC guidelines concerning hygiene, segregation,

and visitation; and (iii) was negligent in other respects that might be uncovered

during discovery. In May 2021, BNR removed the case to the United States District

Court for the District of Delaware, asserting that the Personal Representatives’

claims were preempted by the federal Public Readiness and Emergency

Preparedness Act (“PREP Act”). After briefing, the District Court remanded the

case to the Superior Court in January 2022.1

(2) On July 13, 2022, BNR moved to dismiss the case. BNR argued that

the PREP Act immunized the conduct giving rise to the complaint. After briefing

and oral argument, the Superior Court issued an opinion denying BNR’s motion to

dismiss on January 23, 2023 (“Opinion”).2 The court held that: (i) infectious disease

protocols were not “covered countermeasures” entitling BNR to immunity under the

PREP Act; (ii) Health and Human Services advisory opinions did not expand the

1 Hansen v. Brandywine Nursing & Rehab. Ctr., Inc., 2022 WL 608968 (D. Del. Jan. 19, 2022). 2 Hansen v. Brandywine Nursing & Rehab. Ctr., Inc., 2023 WL 587950 (Del. Super. Ct. Jan 23, 2023). 2 meaning of the PREP Act; and (iii) the PREP Act did not create a new defense to

standard negligence claims.3

(3) On February 2, 2023, BNR filed an application for certification of an

interlocutory appeal. The Personal Representatives opposed the application. On

February 24, 2023, the Superior Court denied the application for certification.4

(4) In denying certification, the court questioned whether the Opinion

decided a substantial issue for purposes of Supreme Court Rule 42, but proceeded to

consider the Rule 42(b)(iii) criteria that BNR relied upon.5 The court acknowledged

that the Opinion was the first Delaware decision to address PREP Act immunity, but

emphasized that its reasoning relied on longstanding principles of statutory

construction and application of the plain meaning of the relevant language in the

PREP Act.6 The court also noted that the central holding of the Opinion—PREP Act

immunity does not apply to standard infectious disease protocols—was consistent

with the great weight of authority in other jurisdictions.7 The court concluded that

the delays and disruptions associated with interlocutory review of an issue that was

3 Id. at *5-8. 4 Hansen v. Brandywine Nursing & Rehab. Ctr., Inc., 2023 WL 2199610 (Del. Super. Ct. Feb. 24, 2023). 5 BNR relied upon Rule 42(b)(iii)(A) (the interlocutory order involves a question of law resolved for the first time in Delaware), (B) (trial court decisions are conflicting on the question of law), (G) (review of the interlocutory order may terminate the litigation), and (H) (review of the interlocutory order may serve considerations of justice). 6 Id. at *3. 7 Id. 3 decided consistently with other jurisdictions would not serve considerations of

justice.8 Finally, the court found that the likely benefits of interlocutory review did

not weigh the probable costs such that interlocutory review was in the interests of

justice. 9

(5) Applications for interlocutory review are addressed to the sound

discretion of the Court.10 In determining whether to accept an interlocutory appeal,

this Court may consider all relevant factors, including the trial court’s decision about

whether to certify an interlocutory appeal.11 We agree with the Superior Court that

the Rule 42(B)(iii) criteria do not weigh in favor of interlocutory review and that the

potential benefits of interlocutory review do not outweigh the inefficiency,

disruption, and probable costs caused by an interlocutory appeal.

NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is

REFUSED.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Chief Justice

8 Id. 9 Id. 10 Supr. Ct. R. 42(d)(v). 11 Id. 4