Nursing home faces legal battle

GrayBrier, like many other congregate care facilities during the pandemic, had multiple outbreaks of COVID-19, reporting a total of 152 positive tests among its residents and staff, including 17 resident deaths and two staff member deaths, according to a January report from the NCDHHS.

ARCHDALE — As a frontline health care worker, 29-year-old Tara Pendergrass repeatedly sacrificed her personal safety for the benefit of others during the coronavirus pandemic, according to an attorney representing her next of kin.

A certified nursing assistant at GrayBrier Nursing & Rehabilitation Center in Randolph County, Pendergrass was asked to work a 12-hour shift after testing positive for COVID-19, said Todd King, a Charlotte-based attorney with Lanier Law Group.

Nine days later — on Dec. 8, 2020 — she died from COVID-19-related complications, he said.

Since then, King has uncovered what he terms a pattern of failures by the facility to protect its residents and staff from the virus in the period leading up to Pendergrass’ death.

In addition, GrayBrier has denied the workers’ compensation claim asserted by her mother arising out of Pendergrass’ death.

“Her mom is devastated,” King said. “She does feel like GrayBrier engaged in some gross negligence, if not outright wrongdoing.”

Justin Percival, administrator for Graybrier, did not return a call for comment.

Pendergrass, of Sophia, worked for the nursing home for nearly six years.

GrayBrier, like many other congregate care facilities during the pandemic, had multiple outbreaks of COVID-19, reporting a total of 152 positive tests among its residents and staff, including 17 resident deaths and two staff member deaths, according to a January report from the N.C. Department of Health and Human Services.

DHHS regulators in December 2020 flagged several “deficiencies” at GrayBrier, including multiple COVID-19-positive residents sharing rooms with residents who did not have the virus, lack of proper personal protective equipment use by staff and the inability to deep clean rooms due to staffing shortages.

Positive cases surged in the weeks leading up to Pendergrass’ death — from three on Nov. 19 to 95 by Nov. 28, King said.

“GrayBrier routinely requested that employees continue working after testing positive for COVID-19,” he said. “Industry protocols dictate that COVID-19 positive staff may continue working, but only with COVID-19 positive patients. GrayBrier failed to properly segregate COVID-19 positive patients and permitted positive staff to continue working with non COVID-19 patients.”

GrayBrier in February denied the workers’ compensation claim, arguing that it was not responsible for Pendergrass contracting COVID-19 in its facility.

Generally, these types of claims have to be tied to an accidental workplace injury. King said he’s making the case for Pendergrass’ claim based on a provision in the law that she was at an increased risk of being exposed to a certain illness, in this case COVID-19.

“A lot of workers’ comp carriers throughout the state are accepting COVID-related death claims where a person worked in really close proximity with COVID-positive patients,” he said. “So I was kind of surprised to get the denial.”

King said he’s appealing the denial to the N.C. Industrial Commission, a process that could take more than a year. If successful, he said Pendergrass’ survivors would be entitled to about two-thirds of her weekly wage for about 500 weeks.

“We’re not talking millions of dollars. If you’re a CNA, this is not a large sum,” he said. “She and her mother were basically best friends. This was a really lively person. This wasn’t someone who had a lot of enemies. She was popular with her coworkers. She was well liked in her community.”