Judge with gavel on table

A recent rash of federal court orders made clear the path for COVID-related lawsuits in nine states, but more controversy over PREP Act immunity for protection could be brewing as another court considers similar jurisdictional questions.

The nationwide Public Readiness and Emergency Preparedness Act, or PREP Act, was triggered early in the pandemic and offered healthcare providers immunity from liability during COVID. It has been used as a defense tactic by nursing homes, whose attorneys have sought to push COVID claims into federal courts.

But the Ninth District in late June remanded nearly two dozen COVID cases involving nursing homes to state courts, following the Supreme Court’s refusal to hear a case that could have determined whether such lawsuits should be heard by federal or state juries.

The orders were not a surprise given the High Court’s inaction on Saldana v Glenhaven Healthcare last November. The provider in that case had wanted the case moved to federal court, but the Ninth District had ruled the California provider had to face the allegations at the state level.

On June 20, a three-judge panel from the Ninth, which covers much of the US West, denied appeals in 23 cases against 21 different nursing homes, meaning they will stay with their respective state courts for further action. 

Still, legal experts told McKnight’s Long-Term Care News last week that providers shouldn’t lose hope if judges refuse to move their courses to federal court. Another federal court could soon weigh in on the issue, and a different outcome could compel the Supreme Court to answer once and for all where questions about PREP-related claims belong.

“There still exists the possibility of a circuit split developing on the question whether the PREP Act is a complete preemption statute supporting the removal of a case from state court to federal court,” said James F. Segroves, attorney and partner at Reed Smith. “The Eleventh Circuit, which has jurisdiction over federal district courts in Alabama, Florida, and Georgia, is currently considering that legal question in Schleider v. GVDB Operations.”

That court held oral arguments on that case in April 2022.

In search of a unified national response

Hooper Lundy’s Mark E. Reagan explained that the desire to keep PREP cases in federal courts is connected to Congress’ intent to have a “uniform and national response to pandemics.” He said it would be hard to imagine that kind of uniform response with “thousands of state court interpretations” applying federal law in individual cases.

But even without the Supreme Court’s intervention, Reagan is convinced providers who didn’t exercise willful misconduct will have the high ground in state courts too.

“The majority of Circuit (and District Court) opinions issued to this effect were very careful to clarify that the rejection of the PREP Act for jurisdictional purposes did not imply in any way that the PREP Act could not be used as a substantive defense to the application of ‘covered countermeasures’ in these cases,” Reagan said Thursday.

“For those states that crafted COVID-19 immunity provisions, those immunities would likely be considered first in the defense of these cases,” he added. “If the actions do not fall within such immunities, the issue of PREP Act preemption would conceivably be considered next. Beyond those issues, there are significant questions regarding the ‘standard of care’ in place during the pandemic (or different stages thereof) as well as whether ‘causation’ will  be capable of being demonstrated in these cases.”

Reagan said issues such as constantly changing federal guidance, lack of early clarity 

around COVID transmissibility, PPE supply chain issues and acute-care referrals all could be used to defend nursing homes. 

“We believe that COVID-19 civil liability cases will be challenging cases for plaintiffs to advance to and/or win at trial,” he said. “PREP Act preemption is just one part of this journey but it is an important one related to how long these cases will survive in state courts. In an environment where many insurers retrospectively wrote COVID-19 exclusions into their claims-made policy forms, the costs of defending these cases are very real for providers.”

A recent win for Life Care Centers of America, whose Kirkland, WA, facility was believed to be the site of the nation’s first COVID outbreak, showed that providers can prevail with a vigorous defense.

Though some legal experts have raised concerns that such cases might be settled differently as jurors’ memories of the early COVID era fade, Reagan doesn’t expect that to be the case. And that may be important, given that the Supreme Court still may not weigh in on PREP disparities for years, if ever.

“Stopping the spread of COVID-19 throughout the community was nearly impossible and there is little reason to believe that this reality will be forgotten,” Reagan said. “Also, the introduction of the COVID-19 vaccines on the population of post-acute and long term facilities was such a significant event in this journey in protecting the long-term care population. There were very limited tools before that consequential moment in time and those that did exist should qualify as ‘covered countermeasures’ for the purposes of PREP Act preemption.”