Key Takeaways

• In a series of recent decisions, federal district courts have rejected defense attempts to remove state court tort claims against nursing homes and other senior living facilities based on PREP Act preemption.
• Reading the PREP Act as providing no immunity for failures to act, these cases allow plaintiffs to litigate state law tort and other claims in state courts.
• Owners and operators may raise the PREP Act as an affirmative defense to some state law claims. The PREP Act also should still protect against claims based on the use of covered “countermeasures”.

In our May 1, 2020 OnPoint discussing COVID-19 liability issues for nursing homes and other senior living facilities, we cautioned against reliance on state immunity provisions as a shield against COVID-19-related lawsuits. We did not discuss the federal Public Readiness and Emergency Preparedness (“PREP”) Act, which protects “covered persons” from “claims for loss” caused by the use of listed “countermeasures”. 42 U.S.C. § 247d-6d(a)(1). We expected the PREP Act would be read as not applicable to cases alleging failure to control the spread of infection, particularly in the early days of the pandemic when PPE and other “countermeasures” were not readily available for use. Subsequent decisions by federal courts in New Jersey, Kansas, California, and, most recently, Pennsylvania, align with this expectation.

In several recent opinions remanding state court complaints, district courts have rejected defense efforts to claim complete preemption of and immunity from state common law tort claims under the PREP Act. Similar remand motions are pending in other courts. To our knowledge, though, no court has yet come out the other way.

In Estate of Maglioli v. Andover Subacute Rehabilitation Center I, Defendants removed related wrongful death, negligence, and medical malpractice actions brought by the estates of residents at two senior living facilities based on complete preemption under the PREP Act. But the Court disagreed and remanded. No. CV 20-6605 (KM)(ESK), 2020 WL 4671091, at *11 (D.N.J. Aug. 12, 2020). Declining to read the PREP Act as fully “occupy[ing] the field” of negligence or malpractice claims related to COVID-19, it explained:

[The Act’s] evident purpose is to embolden caregivers, permitting them to administer certain encouraged forms of care (listed COVID “countermeasures”) with the assurance that they will not face liability for having done so. Nothing in the language of the Act suggests that it was intended to more broadly displace state-law causes of action for, e.g., malpractice or substandard care—even if proper care possibly would have entailed administration of such countermeasures.

Id. at *8 (emphasis in original). Specifically, the Court rejected Defendants’ argument that the protection against “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,” 42 U.S.C. § 247d-6d(a)(1), also protects against the non-use of such measures. Id. at *2, 9. It held that the PREP Act does not protect those who decline to use available remedies or who allegedly fail to take other protective steps to counteract virus transmission—such as social distancing, quarantining, and lockdowns. Id. at *9.

Shortly thereafter, citing Maglioli, a Kansas district court similarly remanded twelve related wrongful death cases brought by the estates of persons who had been residents in an assisted living facility, explaining that the “PREP Act’s provisions regarding the administration or use of covered countermeasures” could not be made applicable to a case arising from an alleged “failure to follow certain policies, procedures, and guidelines regarding COVID-19.” See, e.g., Jackson v. Big Blue Healthcare, Inc., No. 2:20-CV-2259-HLT-JPO, 2020 WL 4815099, at *1 (D. Kan. Aug. 19, 2020). The Court held that, for the PREP Act to apply, the complaint would need to allege that the decedent’s death was causally connected to the administration or use of any drug, biological product, or device (i.e. a covered countermeasures) for the treatment of COVID-19. But it observed that “[t]he claim seems to be precisely the opposite: that inaction rather than action caused the death.” Id. at *6.

Thereafter, a California court, without reliance on these prior authorities, remanded to state court a suit brought by the family of a man who died of COVID-19 while a resident in Defendants’ subacute rehab facility. Martin v. Serrano Post Acute LLC, No. CV 20-5937 DSF (SKX), 2020 WL 5422949, at *3 (C.D. Cal. Sept. 10, 2020). The Court acknowledged that Defendants might raise, in response to the state court complaint, an affirmative defense (including a defense of preemption) under the PREP Act. But it rejected the notion that the Act completely supplanted any potential theories of state common law liability, so as to vest jurisdiction solely in the federal courts. Id. at *2.

Just last week, a judge in the Western District of Pennsylvania remanded a wrongful death case brought by the estate of a nursing home worker who allegedly died of COVID-19 contracted while performing her duties. Sherod v. Comprehensive Healthcare Mgmt. Services, LLC, et al., No. CV 20-1198, 2020 WL 6140474, at *1 (W.D. Pa. Oct. 16, 2020). While arising out of the death of a worker rather than a resident, the plaintiff similarly alleged various failures—including a failure to recognize COVID-19 infections in the facility and take appropriate protective measures, including by providing proper PPE, and a failure to follow federal and state infection-control standards. Citing both Jackson and Maglioli and remanding, the Court read the PREP Act as protecting those who do use covered countermeasures, not those who allegedly don’t. Id. at *7-8.

Collectively, these opinions provide important guidance for owners and operators of nursing homes and other senior living facilities, who should conservatively expect that claims alleging failure to take appropriate protective action, or non-compliance with alleged standards, will be treated as outside PREP Act protection. These opinions do leave room for the PREP Act to be raised as an affirmative defense to some COVID-19 claims. The PREP Act also should still preempt claims based solely on the use of covered “countermeasures”. But in most suits involving personal injury or wrongful death alleging a failure to act appropriately in response to COVID-19, the PREP Act likely will not fully supplant state law or provide for federal jurisdiction.