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Appeals court: nursing homes may not be shielded by the PREP Act

On Behalf of | Nov 2, 2021 | Health Law

The 3rd Circuit Court of Appeals, which covers Delaware, Pennsylvania and New Jersey, has ruled against nursing home operators in a federal liability case. Although the 3rd Circuit doesn’t directly cover New York, the ruling is still consequential to us because this was the first federal appeals court to weigh in on the issue.

The question before the court was whether nursing homes are immune to pandemic-related lawsuits under the 2005 Public Readiness and Emergency Preparedness (PREP) Act. The Act was passed in an effort to protect makers of critical products, along with doctors and drug distributors, from lawsuits related to a pandemic.

Nursing homes have long pointed out that they are at the front lines of pandemics, and they have argued that they should be shielded by the PREP Act.

The 3rd Circuit didn’t actually rule that the PREP Act absolutely does not apply to nursing homes. Instead, it ruled that the plaintiffs’ state-law negligence claims did not become federal cases due to the PREP Act. Instead, they remain state-law claims, and the application of the PREP Act will be decided by the state courts.

What were these cases about?

According to Reuters, several families brought state-law negligence lawsuits against a pair of nursing homes. They alleged that Andover Subacute & Rehabilitation I & II failed to take sufficient precautions to contain the spread of the coronavirus.

These cases were apparently among the first filed against nursing homes during the pandemic. However, since that time, hundreds of other wrongful death lawsuits have been brought against nursing care facilities. The cases have largely stalled on the question of whether the PREP Act applies. If it does, these state-level claims become federal cases and could be barred entirely.

What happens now?

With a ruling from the 3rd Circuit now and other federal circuits expected to weigh in relatively soon, it may be that many of these cases will move forward in state court. There, the question still remains whether the PREP Act shields nursing home operators.

The cases are likely to start moving quickly in Delaware, Pennsylvania and New Jersey, where this ruling directly applies. Other courts, however, may take the 3rd Circuit’s reasoning into account. If more federal courts turn away these challenges, the less likely state courts are to wait while nursing homes file PREP Act appeals to the federal courts.

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