The PREP Act and Wrongful Death Claims Against Nursing Homes due to COVID-19

If you have recently lost a loved one due to a hospital or nursing home’s failure to enact safety protocols to protect against COVID-19, you may be wondering what can be done to ensure accountability and justice. Because of the Public Health Emergency declaration by the U.S. Department of Health & Human Services (“HHS”), initially declared on January 31, 2020, and subsequently renewed most recently on October 15, 2021, the answer to this question has become fairly complex.

Ordinarily, state law (as opposed to federal law) governs wrongful death claims. This is good news for the plaintiff, who historically fares better in state court rather than federal court. The representative of the deceased’s estate will file a claim in state court. To prevail, the plaintiff estate must prove four things: that the care facility was at least negligent, that it owed a duty of care to the decedent, that its negligence caused the death, and that damages resulted.

However, there is an additional consideration due to the Secretary of HHS activating the normally dormant Public Readiness and Emergency Preparedness Act (“PREP Act”) to help the federal government respond to the COVID-19 pandemic.

“The PREP Act authorizes the Secretary of the [HHS] to issue a PREP Act Declaration (“Declaration”) that provides immunity from liability for any loss caused, arising out of, relating to, or resulting from administration or use of countermeasures to diseases, threats, and conditions determined in the Declaration to constitute a present or credible risk of a future public health emergency.” (https://www.phe.gov/Preparedness/legal/prepact/Pages/prepqa.aspx)

In other words, the PREP Act includes a clause that shields companies and individuals from liability if they enact countermeasures recommended by HHS as a means of preventing the spread of the disease. This means that if the cause of action is based on a health care professional in the care facility administering a drug, antiviral medication, biologic, vaccine, diagnostic and/or device (e.g., COVID-19 testing and respiratory therapy) in the course of attempting to cure, prevent, or mitigate COVID-19, they are not only shielded from liability at the federal level but you are prohibited from bringing a state law action. This was the holding in a recent Third Circuit decision, Estate of Maglioli v. All. HC Holdings LLC, Civ. Nos. 20-2833, 20-2834 (3d Cir. Oct. 20, 2021).

The limited exceptions to this liability “shield” are death or serious physical injury caused by willful misconduct. (42 U.S.C.S. § 247d-6d(d)(1)). In those instances, the Estate and family member’s claim may still be actionable. Congress created a Treasury fund to compensate victims of covered countermeasures who are otherwise unable to recover damages.

If the death or serious injury resulted from ordinary negligence during the COVID-19 pandemic, you may still be able to effectively bring a state law tort claim against the care facility without the specter of the PREP Act liability shield preempting it.

COVID-19 related litigation resulting from the failure of institutionalized care facilities to properly protect residents is a rapidly developing area of tort law. Should you have any questions regarding a potential claim or on behalf of an Estate or a loved one, please do not hesitate to contact Ward, Shindle & Hall.