A Federal Court has denied a nursing home’s Motion to Dismiss a claim brought by the daughter of a resident who passed away in April of 2020 due to complications from COVID-19. The facility in Pennsylvania allegedly had previously been cited for “inadequate infectious disease control” on multiple occasions in the years leading up to the COVID outbreak. The decedent’s daughter claims the facility acted negligently by failing to maintain an infection prevention and control program in addition to not complying with standard COVID protocol such as testing, social distancing, etc.

The facility tried to use the Public Readiness and Emergency Preparedness (PREP) Act as a shield from liability. Passed by Congress in 2005, the PREP Act was enacted to protect individuals and entities from liability during public health emergencies. The Secretary of the Department of Health and Human Services (HHS) has the power to invoke the Act and did so in reference to COVID on March 17, 2020. The act immunizes “covered individuals” from “any claim for loss that has a casual relationship with the administration to or use by an individual of a covered countermeasure.” There is no dispute that the facility is a covered individual, but the Court agreed with the plaintiff that PREP Act does not provide immunity where the defendant failed to use a covered countermeasure. The court explains “Although the PREP Act immunizes individuals who used covered measures (including social distancing, testing, application of vaccinations), it does not shield covered individuals who failed to use covered countermeasures.” There is a strong likelihood that similar claims will be brought by residents who contracted COVID in nursing homes and this decision could set a precedent for future courts facing similar circumstances. The traditional claims brought in nursing home cases alleging failure to train, staff or prevent infection will survive the passage of the PREP Act.