Yesterday’s post was related to the beginnings of COVID, particularly the Biden Administration’s pandemic response plan. Just as Biden entered office, his administration released the response plan and the post (yesterday) included a recording of a podcast I did on the plan, COVID vaccine rollouts, etc.
Coming a bit closer to full circle, the pandemic is fundamentally over as we have entered the endemic phase of COVID. What has just begun is what I call, the fallout phase of the nation’s response to COVID. We are just now diving into the various remediation steps and policies (vaccine mandates, mask mandates, school closure, business closures, isolation periods, etc.) and as the U.S. and most industrialized nations do, looking at the good and the bad and trying to assess consequences and sometimes, blame for the consequences. The U.S. legal system is constantly full of cases that seek to find an equilibrium point between adverse parties.
To date, the vast majority of COVID litigation is focused on business loss and/or damage due to COVID restrictions/policies. The litigation is targeted to insurance companies and provisions within business interruption coverage and to a lesser extent, pollution coverage. In August, I wrote a post about insurance and liability coverage as applicable to COVID and included a fantastic article from an insurance expert. The article is here: Article-DeLopst-Liability-Coverage-for-COVID19
The business litigation cases, alleging loss of income or business interruption and damage have generally, gone nowhere. State courts have been a tiny bit more willing to allow a case to proceed vs. full dismissal. Federal courts have been inclined to dismiss virtually all cases. A good resource to watch COVID business/insurance litigation is a website tracker hosted by the University of Pennsylvania – https://cclt.law.upenn.edu/
For the most part, courts have held that suits involving “failure” to prevent COVID spread or negligence in preventing infections, have no merit. In short, because of the virulence of COVID and now, more knowledge of the effectiveness (or lack thereof) of mitigation measures to reduce infection spread, it is nearly impossible to hold a person or entity accountable for infections (infections which could have occurred via multiple sources and or locations, regardless of distancing or masking or even, vaccination).
The most currently interesting twists in COVID litigation involve the PREP Act (Public Readiness and Emergency Preparedness Act). With respect to COVID, the Act via declaration and other rulemaking, allows the Secretary of DHHS to limit the liability of those whose job entailed acting to prevent COVID spread.
Several hundred cases have been filed against providers, SNFs and Senior Living the most common, alleging failure to control the spread of illness and thus, negligence. The cases, however, test the immunity afforded by the PREP Act.
The Act provides immunity from both suit and liability “under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure.” Immunity from suit means that a person generally cannot sue in state or federal court a “covered person” for injuries related to activities conducted using a “covered countermeasure,” and immunity from liability insulates the “covered person” from bearing legal responsibility for the same.
What we are seeing now are state legal actions taken against providers (plaintiff suits, some class action). The typical defense strategy (generally the insurance company providing coverage to the provider) is to have the case moved to federal court, arguing that the PREP Act provisions preclude legal action at the state level.
The fascinating trend, and one that could be problematic for insurers and providers alike, is that the Third, Fifth, Seventh, and Ninth circuits have ruled that the PREP Act does not completely exempt state claims, permitting those claims to proceed in state courts. The rulings center on the allegations of wrongful death or injury (negligence) are typically state claims that do not incorporate federal legal elements and/or federal claims elements within the suit. A great piece, in detail, on PREP Act litigation and claims is here: https://www.healthaffairs.org/content/forefront/covid-19-prep-act-litigation-tip-liability-iceberg
Another twist to all of the above in terms of litigation, is how COVID mitigation measures used in Senior Living may be causally tied to claims of poor care, wrongful death, etc. There is no question that isolation measures, staff loss due to infections and removals from shift, vaccine mandates and staff disaggregation, etc., heightened risk for increased resident agitation, depression (lack of visitation), falls, wounds, dehydration, general health decline (deconditioning), etc. On Monday, I’ll address this COVID litigation element in greater detail. Until then, TGIF!
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