Heyl Royster

The Advent of COVID-19 LTC Lawsuits – An End Run Around the PREP Act?

COVID-19 lawsuits have begun in Illinois, with several actions being initiated against Nursing Homes. Reportedly, cases will also soon be brought against Assisted Living Facilities, and plaintiff's lawyers are looking to file causes of action against any Long Term Care Facility (LTC), or against any organization required to employ “countermeasures,” including employers. But what about federal immunity and how far does it go?

In recognition of the potential catastrophic effect of such lawsuits, Congress passed the hefty Public Readiness and Emergency Preparedness Act (PREP Act), providing immunity from liability, 42 U.S.C. 247d-6d, for certain claims of loss arising out of, relating to, or resulting from the administration or use of countermeasures to diseases, threats, and conditions determined by the HHS Secretary to constitute or present a credible risk of a future public health emergency to entities and individuals involved in the development, manufacture, testing, distribution, administration, and use of such countermeasures. COVID-19 has been declared one of those risks. Section 247d-6d(a)(1) specifically provides that a “covered person shall be immune from suit and liability under Federal and State law [federal preemption] with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection (b) has been issued with respect to such countermeasure.” In other words, the PREP Act provides LTC’s with an exemption from civil liability for countermeasures taken by such facilities to protect their residents from COVID-19. However, the language of the Act is complex and not unlimited. For instance, there is no immunity for willful misconduct.

In this newsletter, we want to advise you about what we are seeing in terms of: (1) how are the plaintiffs filing cases against LTC’s arising out of injuries/death associated with COVID-19, and (2) are plaintiffs simply alleging willful misconduct and letting the insurance coverage issues work themselves out either favorably or unfavorably for the LTC facility or other defendant?

The willful misconduct contentions are certainly one of the claims we are seeing. Of course, these claims can raise coverage issues that are important to both the insurer and the insured. We are also seeing the “Reverse PREP Act” claims, where the contention is not that the countermeasures were done poorly, but that countermeasures were necessary and were NOT provided. For example, in recently filed case in Illinois, the crux of Plaintiff's non-willful misconduct claims is that her mother died because the defendant nursing home failed to take certain steps such as separating residents, enforcing social distancing among residents and staff, timely restricting visitors, cancelling group and communal activities, ensuring adequate staffing levels, providing, preserving and properly employing PPE, and failing to take the necessary steps to provide medical care to patients with COVID and to prevent further transmission of COVID. These cases are premised upon negligence, and plaintiffs contend that the PREP Act immunities do not apply where the claim alleges that countermeasures, while necessary, were not administered.

A recent HHS Secretary declaration indicates such contentions may be determined to be valid. On March 17, 2021 the HHS Secretary defined “Administration of a Covered Countermeasure” to mean the “physical provision of the countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution, and dispensing of the countermeasures to recipients; management and operation of countermeasure programs; or management and operation of locations for purpose of distributing and dispensing countermeasures. The definition of ‘administration’ extends only to physical provision of a countermeasure to a recipient, such as vaccination or handing drugs to patients, and to activities related to management and operation of programs and locations for providing countermeasures to recipients, such as decisions and actions involving security and queuing, but only insofar as those activities directly relate to the countermeasure activities.” 85 Fed. Reg. at 15200. Claims for liability are precluded if they “allege an injury caused by a countermeasure, or if the claims are due to manufacture, delivery, distribution, dispensing, or management and operation of countermeasure programs at distribution and dispensing sites.” 85 Fed. Reg. at 15200. This declaration would suggest that the “failure to administer countermeasures” does not qualify for immunity.

Heyl Royster features a team devoted to the defense of COVID-19 lawsuits. We closely follow this developing area and also provide pre-suit analysis, preparation, and evidence preservation and gathering. Further, we provide coverage analysis and interpretation with regard to this novel area. We work across all of our offices to put our best legal talent in place to represent your interests, and to advise and defend. As an example, there are important strategies with regard to whether to remove state actions to federal court or to focus on federal preemption in state court.

Please feel free to reach out with your questions and concerns to our Managing Partner or any of our team members:

Firm Managing Partner – Craig Young
Chicago – Tobin Taylor and Andy Roth
Rockford – Michael Denning and Lindsey D’Agnolo
Peoria – Nicholas Bertschy
Springfield – Tyler Robinson
Champaign – Dan Wurl
Edwardsville – Barry Noeltner
St. Louis – Rick Hunsaker

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