COVID SLOWS DOWN COURT CLAIMS IN WRONGFUL DEATH CASES AGAINST NURSING HOMES
Recently, a lawsuit was filed by Garnice Robertson in the federal court of Topeka, Kansas alleging that the Kansas nursing home was accountable for her mother’s death from COVID-19 as the nursing home had failed to prevent the outbreak of the pandemic. However, the nursing home argued that it had complete legal immunity from such lawsuits pertaining to the COVID-19 pandemic as under the recent changes made to the Public Readiness and Emergency Preparedness Act, 2005 (“the Act”).
The Actessentially provides immunity to certain persons from liability for claims against (except for willful misconduct) (a) loss caused, arising out of, relating to, or resulting from administration or use of countermeasures to diseases, threats and conditions, (b) determined by the Secretary to constitute a present, or credible risk of a future public health emergency, and (c) to entities and individuals involved in the development, manufacture, testing, distribution, administration, and use of such countermeasures. It was enacted for encouraging the production of emergency vaccines during an epidemic by granting legal immunity to drug developers. The Act further empowers the Secretary of Health and Human Services to issue a declaration to provide liability immunity to certain individuals and entities.
According to the declaration made on March 17, 2020 by the Secretary of the Department of Health and Human Services (HHS), the Act shall now provide immunity from liability for activities related to medical countermeasures against the ongoing COVID-19 pandemic. Under the said amendment, the immunity is provided to manufacturers, distributors, program planners and qualified persons.
In August, the then-HHS general counsel Robert Charrow observed that senior living facilities were covered by the Act if they were using approved products to fight the pandemic. (Letter from Robert P. Charrow, General Counsel, HHS, to Thomas Baker, Foley Hoag LLP (Aug. 14, 2020).) He further opined that the Act would apply in situations where, an organization failed to take an action while trying to comply with health regulations.
Taking this forward, the acting HHS Secretary Norris Cochran stated in a letter to state governors that they could expect continued use of PREP Act declarations to support the fight against the pandemic. (Letter from Norris Cochran, Secretary, HHS, to Governors (Jan. 22, 2021).
In another case, the family of Vincent Martin sued Hollywood Premier Healthcare Center of Los Angeles in the state court a month after Martin died of COVID-19 in April. The nursing home, where at least 11 residents died, pleaded the PREP Act and moved the lawsuit to the federal court. The court, however, sided with the deceased’s family and sent it back to the state court.
Thereafter, this January, Hollywood got the case moved back to federal court a second time, where it continues to remain pending. The U.S. District Court Judge Dale Fischer said Hollywood’s request to stay proceedings while it appealed the order sending the case back to state court raised “a serious possibility of such removals being used in a cynical, strategic way to stall cases and to extract concessions … from opposing plaintiffs.”
Given this amendment per the pandemic, the court claims have been slowed down and it has become difficult for people like Riverbend to hold the nursing homes accountable, that cited the 2005 law as a defense.
 See Federal Register / Vol. 85, No. 52 / Tuesday, March 17, 2020 / Notices at https://www.govinfo.gov/content/pkg/FR-2020-03-17/pdf/2020-05484.pdf