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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

October 23, 2020

COVID-19: Federal District Court Provides Insight Into Interpretation of PREP Act Immunity

On October 16, 2020, the US District Court for the Western District of Pennsylvania held in Sherod v. Comprehensive Healthcare Management Services, LLC1 that a nursing home, Brighton Rehabilitation and Wellness Center, could not claim preemption and federal immunity under the PREP Act from a housekeeper’s COVID-19 wrongful death suit.

The lawsuit alleges the nursing home failed to take precautions to prevent facility staff from contracting the virus. More specifically, the plaintiff’s estate alleged Brighton failed to take sufficient steps to stop the spread of the COVID-19 virus among patients and staff, including downplaying the severity of the spread in the facility and failing to provide personal protective equipment. The decedent housekeeper had allegedly raised concerns with Brighton that, as a cancer survivor, she was vulnerable to contracting the virus but was directed to keep returning to work. She contracted the virus and passed away on May 10. 

The PREP Act provides immunity from liability under state and federal law to a “covered person” for losses related to the use of “countermeasures” during a declared public health emergency. While Brighton claimed a nursing home is considered a “covered person,” the federal court, upon a petition for removal, held the estate’s allegations did not fall within the purview of the PREP Act’s immunity because the alleged claims were premised on a failure to provide countermeasures and were therefore not “causally connected to Brighton’s use of covered countermeasures.” In so holding, the federal court relied on a New York State Supreme Court case, Casabianca v. Mount Sinai Medical Center, in which the decedent’s treating physicians failed to provide him with the H1NI vaccine, and thus the PREP Act immunity did not apply.

While the federal court’s decision means the case will proceed in state court, Brighton has since filed a motion asking the court to consider an alternative legal basis for federal jurisdiction. The issue is whether the nursing home was acting as a federal officer on behalf of the Centers for Medicare and Medicaid Services and the Centers for Disease Control and Prevention because, early on in the pandemic, it was directed by these agencies to preserve protective gear and notified that facilities would not be cited for shortages outside of their control. The pending motion suggests facilities following federal directives should be treated as agents of the federal government that should be immune from liability for actions taken at the government’s direction.

As courts continue to interpret state and federal COVID-19 immunity statutes, it is important that health care providers continue to document services rendered to their patients and countermeasures taken in order to protect both staff and patients from contracting the coronavirus. We also recommend providers review and revise their COVID-19-related policies, including those related to personal protective equipment, and ensure that staff comply with any relevant policies.

1 See 2020 U.S. Dist. LEXIS 191885 (Oct. 16, 2020).

If you have any questions regarding the content of this alert, please contact Linda Clark, Health Care Controversies Team leader, at lclark@barclaydamon.com; Mary Connolly, associate, at mconnolly@barclaydamon.com; or another member of the firm’s Health Care Controversies Team.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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