In the wake of COVID-19 staffing shortages, supply chain breakdowns, and increased patient loads, a handful of states granted civil immunity to nursing homes, long-term care facilities, and health care systems. The exact number of states with civil immunity granted to long-term care facilities has fluctuated, much like the COVID-19 cases over the years, but some 40 states have enacted a form of litigation protection at one time or another.
Throughout the pandemic, Pennsylvania Governor Tom Wolf has issued a host of executive orders. In May 2020, Governor Wolf granted civil liability protections to health care practitioners. This order did not extend the protections to the facilities themselves. This civil protection was also only applicable in furtherance of the Commonwealth’s COVID-19 disaster emergency response. The order ends on the note that this immunity does not stretch to providers giving non-COVID-19 medical care. Furthermore, providers under this order could still be found liable for gross negligence or willful misconduct.
Given that this order only served to protect the individual medical providers, some PA facilities have repeatedly turned to the federal Public Readiness and Emergency Preparedness Act (PREP Act) to seek immunity from mounting COVID-19 lawsuits. This has sparked dramatic and nationally reported legal battles. The high stakes for some PA facilities have even prompted lawyers of the world’s biggest law firms to enter the melee.
Though the fierce fighting continues to play out across both county and federal district courts in PA, the general trend thus far appears to be that the PREP Act has not been successful for defending against COVID-19 wrongful death claims. The argument for many of these cases has been that the PREP act protects facilities for the “use or administration” of emergency countermeasures, but most of the wrongful death suits are arguing there were no countermeasures. In other words, plaintiffs say taking no action is not protected where the PREP Act is interpreted to protect emergency action.
Despite a few key plaintiff-side victories, the war for immunity rages on and all it takes is one verdict on either side to turn this discussion on its head.