Loyola University Chicago School of Law, JD 2022
Nursing homes have been devastatingly impacted by the COVID-19 pandemic. As of February 26, 2021, as many as 34% (172,000+) of all COVID-19 deaths in the United States have been nursing home residents and employees. While COVID-19’s lethality in older adults and likelihood of transmission in congregate facilities are to blame, plaintiffs’ attorneys specifically question sweeping legislation among various states regarding nursing home restrictions on refusing COVID-19 positive residents and immunity protections. A look at the Public Readiness and Emergency Preparedness (“PREP”) Act and recent federal cases sheds light on the future of plaintiff suits related to COVID-19 deaths in nursing homes.
What is the PREP Act?
The PREP Act, enacted on December 30, 2005, is used by the Secretary of the Department of Health and Human Services (“HHS”) to authorize declarations when faced with public health emergencies. The Act was originally intended to expedite vaccine production in the event of a public health emergency. Today, the Act is used and interpreted to provide entities, such as hospitals and nursing homes, and individuals with immunity from liability for administering “countermeasures” to public health threats. The Act defines countermeasures as qualified pandemic products, drugs, authorized emergency devices, such as respiratory devices, and more. The Act has been amended for various public health threats, such as H1N1, Zika, and Ebola. The most recent amendments are from March 2020 regarding COVID-19, following the HHS Secretary’s declaration of a public health emergency.
The PREP Act, COVID-19, and nursing homes
The 2020 Amendments of the PREP Act affect any entity or individual who administers COVID-19 related care, but there has been some debate over whether nursing homes should be granted immunity under the Act. On May 28, 2020, a group of national and state organizations wrote a letter to then-Senate Majority Leader Mitch McConnell opposing any federal legislation related to immunity. In August of 2020, HHS general counsel Robert Charrow stated that nursing homes were in fact covered by the Act if they used approved pandemic products or countermeasures. Though federal legislation regarding immunity is important, attorneys nationwide are arguably more focused on their respective states’ legislation and the various executive orders that governors have imposed.
New York Governor Andrew Cuomo, for example, received backlash after his push for state legislation that protects nursing homes from liability while also insisting that they accept COVID-19 positive patients. The New York Times podcast “The Daily” released a two-part episode on the subject titled When Covid Hit Nursing Homes. In the podcast a woman details her emotional experience of trying to remove her mother from a nursing home and being told she would be safer there, only to lose her mother shortly after. Illinois Governor JB Pritzker implemented a similar policy through Executive Order 2020-19. As expected, Governor Pritzker’s order also received its fair share of criticism by attorneys and state officials. Most notably, there is a concern that an underlying goal of the order was to also give hospitals immunity for non-COVID-19 related injuries or deaths that were caused by a lack of resources and staff due to the high volume of COVID-19 cases in the state.
The future of plaintiff suits related to COVID-19
Should COVID-19 cases be filed in state or federal court? The answer is an attorney’s favorite response, “it depends”. Thompson Reuters found that as of January 2021, approximately seven federal judges issued preliminary rulings, all of which sided with the plaintiffs and ordered the cases to be returned to state court. If COVID-19 liability cases are filed in various state courts, then the law at issue will depend on the present status of that state’s laws and executive orders, such as the ones made by Governors Cuomo and Pritzker. Most executive orders – and the PREP Act – have carved out an exception to immunity when facilities or individuals engage in willful misconduct.
While nursing homes may be sued for COVID-19 related deaths, even if only in limited circumstances, this also then begs the question if they should in fact be sued for COVID-19 related death. Some attorneys fear that having no form of immunity may lead to an immense amount of litigation that could clog the court system and the personal-injury industry. This however is a heated debate among plaintiff and defense attorneys nationwide, which will likely result in years of litigation and various court opinions to offer more clarity.