The present legal landscape related to COVID-19 litigation continues to change, almost daily. There are novel theories being thrown around by all involved. One defense that is being pled by defendants is based upon PREP Act immunity. Although the PREP Act is not new, it is being used for the first time with full force due to COVID-19. The PREP Act provides immunity from suit and liability to licensed medical providers; including those practicing outside their scope of practice, out-of-state practitioners, and volunteer practitioners, as well as persons and corporate entities who supervise or administer COVID-19 vaccine programs; and facilities administering the COVID-19 vaccine.

To date, the legal world is focusing on two courts that have issued orders relative to dismissing COVID related cases based upon PREP Act immunity. These orders, by two separate courts, have cut both ways, one granting a complete dismissal of a COVID related claim and one denying a dismissal with similar facts. The case where the court did not dismiss the case is presently on appeal in the Court of Appeals for the D.C. Circuit. In the case where the defendant medical provider was dismissed due to the PREP Act immunity defense, plaintiff’s counsel has appealed that decision and is being backed financially by the Plaintiff’s Bar. So, in essence, you have two different courts in different parts of the Country ruling completely opposite on the same set of facts related to COVID and the PREP Act immunity defense.

For those unfamiliar with the case where the court ruled for the medical provider, the Judge found that the PREP Act applied to Defendants and completely preempted the Plaintiffs’ claims. Briefly, by way of background, the Plaintiff was a resident at Defendants’ facility from 2017 through the COVID-19 pandemic, passing away on July 3, 2020. The crux of Plaintiff’s claim was that Defendants “failed to implement appropriate infection control measures or follow local or public health guidelines in preparing for and preventing COVID-19 spread” and as a result plaintiff was caused to contract COVID-19 and pass away from the same. The reasoning behind Judge’s order dismissing the case against the healthcare provider is what all Defendants across the Country have and will be arguing in any case involving COVID-19 claims: the PREP Act applies to healthcare facilities by virtue of their classification as “program planners” administering and using covered countermeasures, such as PPE and that the PREP Act is a complete preemption statute. The Judge relied on the Fourth Amendment to the PREP Act Declaration for COVID-19 Countermeasures and Advisory Opinion 20-01 from January 8, 2021. Of note, in the context of senior living and long-term care specifically, the Judge stated that these were also covered by the PREP Act.

There will be a tremendous amount of legal jockeying over the PREP Act immunity defense to COVID-19 cases. Unfortunately, politics will more than likely raise its ugly head and get involved in a very powerful way. Ultimately, the issue of how far the PREP Act immunity goes will likely be a question for the US Supreme Court. Even so, as it stands right now, the PREP Act immunity defense should be a complete bar to almost any claim plaintiffs may have related to COVID.

We will continue to monitor cases involving the PREP Act defense and will let you know how the various jurisdictions are ruling on this important issue as soon as they are released.