OSMA, along with the U.S. Chamber of Commerce and the American Medical Association (AMA), is participating in an amicus brief in the federal Sixth Circuit Court of Appeals on the question of whether the federal Public Readiness and Emergency Preparedness Act (the PREP Act) provides immunity from liability in a wrongful death claim against an assisted living facility for failing to take appropriate countermeasures during the early days of the COVID-19 pandemic. Hudak v. Elmcroft of Sagamore Hills was filed in an Ohio state court and then removed to the federal Northern District of Ohio.
The basic question involves the preemptive reach of the PREP Act. The statute says a covered person shall be immune from suit and liability under Federal and State law with respect to 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 when a public emergency is in effect.
PREP Act immunity applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure.
42 U.S.C. § 247d-6d(a)(1).
The HHS General Counsel has issued an advisory opinion to the effect that, with narrow exceptions, the PREP Act completely preempts almost all negligence claims that can be brought against health care providers based on failure to institute proper COVID-19 preventative procedures.
The Ohio federal district court rejected the assisted living facility’s attempts to invoke the PREP Act's preemption provisions, and it remanded the case back to state court for further proceedings. The AMA and OSMA is hoping that a favorable decision in this case will be helpful if and when cases are brought against physicians for failure to follow COVID-19 protocols.