We are okay with concept of providing some limited immunities to ensure the widespread distribution of COVID-19 vaccines. Congress and the public want to see our economy and lives get back to normal as quickly as possible. While the concept of limited immunity in limited circumstances might be sound, the devil is always in the details.
In response to feared SARS and Swine Flu pandemics, Congress passed the Public Readiness and Emergency Preparedness (PREP) Act in 2005. The law provides immunity from lawsuits related to the manufacture, testing, development, distribution, administration and use of medical countermeasures against COVID-19 and more. By “more” we mean that the law extends to countermeasures for chemical, biological, radiological and nuclear agents of terrorism, epidemics, and pandemics.
The law originally appears to have been directed at protecting vaccine makers who endeavor to quickly get vaccines distributed to the public.
In March 2020 the Secretary of the Department of Health and Human Services (DHHS) issued a declaration triggering the law. Any countermeasures deployed against the novel coronavirus are covered by the Act. But are the protections just for vaccine makers? No.
Certainly the PREP Act limits the ability to sue a vaccine maker who produces a COVID-19 vaccine. In order to prevail in a lawsuit, the plaintiff has an impossibly high burden of proof. He or she must establish that “willful misconduct” was the proximate cause of death or serious injury from the vaccine and must do so by “clear and convincing evidence”.
Knowing that some people might be injured if a vaccine was rapidly deployed, the law includes a Countermeasures Injury Compensation Program designed to compensate individuals with serious physical injuries or deaths directly caused by administration or use of a vaccine.
If that is all the law did, we could live with it. Unfortunately whatever Congress intended 15 years ago, is irrelevant. The government’s interpretation and application of the law now goes well beyond COVID vaccines.
Today we read a healthcare expert say that PREP Act immunity is so broad that it would “cover a fight in the parking lot while waiting for drive-through COVID testing.” While that comment may have been meant as a joke, that same expert says that immunity from lawsuits extends to nursing homes assuming they administer the vaccine.
Worse, a new announcement from DHHS says the Act now extends beyond the coronavirus and “extends immunity to other diseases, health conditions, or threats that may have been caused by COVID–19, . . . including the decrease in the rate of childhood immunizations, which will lead to an increase in the rate of infectious diseases.”
Lest you think this is a short term program designed to get us through the winter, the immunities granted by the emergency declaration are scheduled to extend through October 2024.
We disagree that the PREP Act extends to a fight in a parking lot but understaffed and poorly run nursing homes will try to milk the law and use it as a shield against any liability they may have. Already more than half the states have provided ill planned immunities to nursing homes. In the remaining states, high powered lobbyists for the nursing homes continue the push. For passage of new immunities.
What’s our take? As currently interpreted by DHHS, the federal emergency declaration under the PREP Act will invariably mean that some nursing homes get away with murder. Literally.
Nursing Home Immunity Laws – A License to Neglect
We don’t believe that nursing homes should be able to avoid being sued for their own negligence. It’s one thing for a nursing home to raise as a defense that it complied with all CDC guidelines and yet residents still became infected. These immunity orders and legislation go too far, however. They allow nursing homes to avoid responsible for their own negligence. In several states, nursing homes even have immunity from criminal behavior.
North Carolina gave immunity to nursing homes even if they were cutting corners on staffing and infection control. It’s no wonder that half of all COVID deaths in the state were of nursing home patients.
What the lobbyists never admit is that many nursing homes that experienced devastating COVID-19 outbreaks had previously been cited by regulators pre-pandemic for infection control violations. In fact, almost two-thirds if nursing homes had been cited for infection control violations in their two most inspections. Should they be getting a pass?
According to one woman whose husband died in a Massachusetts nursing home, “If you take the power of suing away from the families, then anything goes. They already knew in Washington how quickly this would spread. They should have taken extreme measures, sensible measures. And they were not taken.”
In July, a broad coalition of patient advocacy, consumer and labor groups sent a letter to Congress opposing immunity legislation at the federal level. Their letter said,
“Essentially, the only mechanism available for a nursing home resident to hold facilities responsible for substandard care is judicial recourse. Without that, they say, nursing homes will have little to no oversight.… Congress would be placing nursing home residents in jeopardy at a time when they are the Americans suffering most from the Covid-19 outbreaks.
“Moreover, many of these nursing home facilities are owned by for-profit chains or by private investors, who do not give proper attention to resident health and safety. This has led to egregious safety problems, including long histories of atrocious infection-controls. The nursing home industry has long and actively fought federal pandemic preparedness requirements, even lobbying against such rules before the current administration. As the advocates put it in their June 24 letter, ‘As a nation, we cannot tolerate rewarding nursing homes for years of cost cutting and profit maximizing by relieving them of responsibility.’
“The bill is overbroad in many other ways, as well. For example, it covers the treatment, diagnosis, or care with respect to an individual who presents to a health care professional or related health care entity. It is not limited to COVID-19 patients. It is not even limited to health care systems experiencing any sort of emergency. This is simply blanket immunity for negligence.”
Can I Sue a Nursing Home if My Loved One Gets COVID?
“Can I sue a nursing home for COVID?”, is a question we hear frequently. As discussed above, in many states the answer is probably no. Thankfully some states have resisted the pressure from lobbyists. And at least one state, New York, partially repealed their very onerous immunity law after thousands of residents needlessly died from coronavirus there.
Our team and national network of nursing home neglect lawyers are actively investigating preventable nursing home deaths because of COVID-19. Because immunity laws are constantly changing, simply contact us and we will be happy to let you if we can assist your loved one.
Whether coronavirus or a non-COVID injury, we are ready to help. For more information, visit our nursing home coronavirus information and non COVID nursing home death pages . Ready to see if you have a case? Contact us online, by email [hidden email] or by phone 833.201.1555.
Nursing home neglect cases accepted nationwide - we have lawyers throughout the United States. Cases accepted on a contingency fee basis meaning there are no legal fees or costs unless we recover money on your behalf.
(Do you work in a nursing home and have concerns for patient care in your facility? Contact us anonymously, we are happy to help get the word out and alert regulators.)