Amicus Brief Argues That Covid-19 Negligence Suits Belong—If Anywhere—In Federal Court

By Lawrence S. EbnerDecember 28, 2021
Covid-19 Frontline Medical Professionals Have PREP Act Immunity

Covid-19 Frontline Medical Professionals Are Entitled To Immunity From Suit Under the PREP Act

The Covid-19 pandemic has spawned numerous wrongful death and personal injury suits. These suits belong—if anywhere—in federal courts. But vast majority of these suits, which allege negligence and malpractice on the part of hospitals, nursing homes, doctors, and other healthcare professionals, especially during the early months of the pandemic, have been filed in state courts. A key threshold issue is whether these suits, which purport to be based only on state law, nonetheless can be removed to federal court, especially in light of the Public Readiness and Emergency Preparedness Act (“PREP Act”).

The PREP Act expressly provides immunity from suit and liability under both state and federal law for administration of “covered countermeasures” in connection with federally declared public health emergencies such as the Covid-19 pandemic. See 42 U.S.C. § 247d-6d(a)(1). On behalf of the Atlantic Legal Foundation, I have filed an amicus brief urging the U.S. Court of Appeals for the Second Circuit to hold in Rivera-Zayas v. Our Lady of Consolation Geriatric Care Center, No. 21-2164,  that Covid-19-related suits that implicate PREP Act immunity necessarily raise federal questions and therefore can be removed to federal district court.

The brief argues that state-court wrongful death and personal injury suits that implicate PREP Act immunity belong, if anywhere, in federal court, not state court.  More specifically, the amicus brief, which I authored with the pro bono assistance of Brian Goldman of Holwell Shuster & Golberg, argues that the PREP Act, when activated and implemented by a Declaration (as amended) issued by the Department of Health and Human Services, mandates a nationwide response to the Covid-19 pandemic. But a nationwide response cannot be achieved if each State can determine for itself  the scope and applicability of PREP Act immunity. Instead, doctors, nurses, and other healthcare professionals will decline to provide frontline public health emergency services where they are needed most if they are subjected to, or even threatened with, the very type of state-law liability that Congress intended the PREP Act to bar. For these reasons, no matter how carefully Covid-19-related wrongful death and personal injury suits are drafted to avoid federal law, they necessarily raise federal questions and therefore are removable.