Are you PREP-ared? The latest in PREP Act litigation

Animated header featuring prep-act call to action

Liability stemming from the COVID-19 pandemic has impacts beyond the nursing home industry: hospitals are also keeping a close eye on pending litigation and lobbying for protections. 

The American Hospital Association, for example, has said that as part of its 2022 advocacy agenda, it plans to support the application of immunity under the Public Readiness and Emergency Preparedness (PREP) Act. This would limit hospitals and other health care providers’ liability for measures taken in the delivery of care during the pandemic.

During a public health emergency, the PREP Act authorizes the HHS Secretary to limit legal liability for losses relating to the administration of medical countermeasures such as diagnostics, treatments and vaccines. In March 2020, then-HHS Secretary Alex Azar invoked the PREP Act after declaring COVID-19 a public health emergency. 

In the two years following, the estates and loved ones of those who have died of COVID-19 in hospitals and under the care of nursing homes have filed wrongful death suits against the facilities in state courts, and health care organizations have responded by attempting to remove them to federal court, arguing that the PREP Act preempts state-law claims entirely. 

At Med Law Advisory Partners, we have been following pending litigation that will shape the application of the PREP Act in future cases involving health care organizations. Late last year, we identified it as one of our top items to watch in 2022 and highlighted the first pandemic-era PREP Act ruling to emerge in the federal appeals courts: an October 2021 decision in Estate of Maglioli v. Alliance HC Holdings.

In Maglioli, the court declined to find that the PREP Act fully preempted the plaintiffs’ state-law negligence claims against a nursing home for the deaths of their loved ones. The court remanded the case to proceed in New Jersey state court. 

Since our last discussion of the PREP Act, two more federal appeals courts have weighed in on the application of the law, again ruling in favor of the plaintiffs in nursing home wrongful death cases. 

On Feb. 22, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court ruling remanding a case that was removed to federal court to state court in California. In Saldana v. Glenhaven Healthcare, the court found that it lacked federal subject matter jurisdiction to hear the plaintiffs’ claims. 

Like in Maglioli, the court was unpersuaded by the defendants’ arguments that the plaintiffs’ claims were fully preempted by the PREP Act or that they were conscripted to assist a federal officer or agency in performance of a government duty that would allow for removal under the Federal Officer Removal statute. 

On March 10, the U.S. Court of Appeals for the Fifth Circuit became the third federal appeals court to reject similar arguments in the case of Mitchell v. Advanced HCS, LLC

Similar cases remain pending in several other federal appeals courts, including the U.S. Court of Appeals for the Seventh Circuit. The American Hospital Association joined with other groups in filing a friend-of-the-court brief in support of the defendants in that case.  

In another sign that the PREP Act litigation is ramping up, in December, the National Law Journal reported that increasingly, Big Law firms are joining nursing homes and hospitals in their fight to establish their immunity. 

While much of the litigation receiving news coverage to date has focused on nursing homes, the National Law Journal highlighted the case of Brookdale Hospital Medical Center, a New York hospital that, along with its physicians, is fighting claims brought by the family of a patient who suffered a severe case of COVID-19 and died at the hospital. 

Court watchers and parties to these suits anticipate the U.S. Supreme Court will likely eventually step in to review the scope and application of the PREP Act. In the meantime, we will continue to monitor this evolving area of law and provide updates in the future. 

Med Law Advisory Partners works directly with hospitals and health systems to complement their in-house leaders, broaden internal capacity for case analysis, determine the level of exposure based on merit, and facilitate a roadmap towards prompt resolution of claims. 

We provide hospital executives and boards unique intelligence and guidance that supports the reliability of systems, improves patient outcomes, reduces financial risk, and strengthens the healthcare workforce. 

Contact us today for more information on how we can partner with you.

Download The
Article on Experts

Featuring key differences between consulting and testifying experts.