PREP ACT

Florida assisted living lawsuit remanded to state court

COVID-19 federal protections no applicable, court rules, by remanding a COVID-19 negligence and wrongful death lawsuit filed against a Florida assisted living community to state court. The federal court recently ruled the case did not fall under federal protections in place during the pandemic.

Several cases have challenged immunity protections for senior living providers under the PREP Act, which preempts state law liability claims. Most states that passed legislation related to COVID-19 tied liability protections to the duration of the public health emergency declared by a state, rather than the federal government. The 9th District Court in 2023 remanded almost two dozen COVID cases involving long-term care facilities 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.

Excelas’ COVID-19 Comprehensive Integrated Timeline Tool can help depict the guidance and timing of communication from federal and state agencies from the initial stages of the COVID-19 pandemic to current directives.

FALSE CLAIMS ACT

False Claims Act likely to face Supreme Court review

A recent ruling in a Florida False Claims Act case may give the Supreme Court an opportunity to prevent whistleblowers from acting on behalf of the government to bring lawsuits against healthcare providers. US District Court Judge Kathryn Kimball Mizelle ruled that qui tam lawsuits are unconstitutional because they violate Article II of the Constitution’s Appointments Clause.

The law’s qui tam provision encourages insiders, or whistleblowers, to gather the evidence federal prosecutors need to pursue a case. But those whistleblowers often continue to drag out costly court action even after the government declines to intervene.  Judge Kimball Mizelle noted that this practice “encourages litigation — so much so that private realtors bring the majority of FCA actions.”

In fiscal year 2023, False Claims settlements and judgments approached a record $2.7 billion. Since 1986, firms that specialize in litigation funding, often for a share of a whistleblower’s recovery, have been able to collect triple the damages in a successful FCA case.

Excelas chronologies and case summaries help defend claims

IN THEIR OWN WORDS

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