PREP Act in Long-Term Care Settings Update

Due to state statute of limitations, many firms are rushing to file claims related to incidents from the early days of the pandemic.  As of June 2022, the Hunton Andrews Kurth COVID-19 Complaint Tracker reports 541 suits have been filed against healthcare providers, with wrongful death cases accounting for over 66% of those cases.  Defense attorneys have argued that COVID-related cases fall under the PREP Act and should be heard in federal court.  To date, judges in U.S. District and in Court of Appeals have consistently remanded cases to state courts.

COVID suits federal court

The following cases have been decided at the Circuit Court of Appeals level:

Appeals by the defense are pending in other Circuit Courts.  One case is pending appeal by the plaintiff in the Ninth Circuit (Garcia v. Welltower, February 10, 2021).  The district court had denied remand to state court and held that the PREP Act is a complete preemption statute based on a January 2021 HHS Counsel Advisory Opinion.  However, other courts have commented that the reasoning in Garcia was overruled by the Ninth Circuit’s decision in Saldana.  Many courts have emphasized that the HHS Advisory Opinions “do not have the force or effect of law.”  Excelas has gathered a review of relevant court cases and articles since the Maglioli decision which can be downloaded from our home page.

Whether the PREP Act or state immunity orders come into play, documentation of compliance with federal, state, and local guidelines is critical in managing lawsuits in long-term care.  As previously explained in McKnight’s, documentation should be digitized and include a chronology of actions taken to prevent or minimize the spread of the virus.  Excelas’ COVID-19 Comprehensive Integrated Timeline Tool integrates federal and state guidance with a health care organization’s protocols juxtaposed to a patient’s medical records.  This format allows for a clear chronology of events to assist in the defense of COVID-19 claims.

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