![]() Garcia and Sherod demonstrate the fundamental difference between courts and their view of the culpability of long-term care facilities during the pandemic. The court basically sided with HHS’s own interpretation, respecting the agency’s interpretation of PREP immunity among the facilities. Under these two opinions, HHS made clear that even a nursing home’s failure to act as part of a program plan to combat COVID could be part of a reasoned countermeasure that would afford a facility complete immunity under PREP. ![]() In Garcia, the court paid deference to two significant HHS advisory opinions on PREP. Now, Garcia, filed in a different federal court, ruled in favor of an assisted living facility and has granted immunity to a facility, against a plaintiff who claimed the assisted living facility took inadequate safety measures against coronavirus. ![]() Sherod showed how immunity will protect nursing homes from, for example, faulty test kits used, but may not remove liability if employers fail to use proper COVID-19 countermeasures. Schwab found that PREP didn’t apply and didn’t provide immunity to the facility. Notably, Sherod applied this loophole and a federal judge in the Western District of Pennsylvania ruled in favor of the plaintiff. The loophole is utilized when plaintiffs allege that an employer failed to use appropriate countermeasures without focusing on the employer’s actual use of the countermeasures to get around application of PREP immunity. Sherod shed light on an apparent loophole plaintiffs have utilized to avoid PREP immunity. While the facility claimed that a nursing home is considered a covered person under PREP, Sherod held the estate’s allegations didn’t fall within the purview of PREP’s immunity because the plaintiff’s alleged claims were premised on the nursing home’s failure to provide countermeasures rather than countermeasures that were used by the facility that may have failed. PREP immunity is not new, as it has been used for immunity protection in response to Zika, Ebola, pandemic influenza, botulinum toxin, smallpox, acute radiation syndrome, and anthrax. ![]() PREP provides immunity from liability under state and federal law to a “covered person” for losses related to the use of “countermeasures” during a declared public health emergency. In Sherod, Brighton Rehabilitation and Wellness Center could not claim preemption and federal immunity under PREP against a housekeeper’s COVID-19 wrongful death suit against the nursing home. Comprehensive Healthcare Management Services LLC. Previously, in October 2020, a federal court issued an opinion that greatly limited federal immunity protections for nursing homes in the case of Sherod v. The court ruled that the plaintiff could not criticize the infection control, personal protective equipment and other coronavirus prevention measures taken by the facility because it was deemed a “Covered Person” under the federal Public Readiness and Emergency Preparedness Act (PREP) and was, therefore, afforded immunity for undertaking those “countermeasures” during the pandemic. The case was filed by the sons of a deceased facility resident. In Garcia, the complaint accuses defendants of failing to take adequate measures to prevent the spread of COVID-19. 10 has the nursing home industry and plaintiff malpractice attorneys clamoring over whether certain measures taken by nursing homes during the pandemic should be immune from plaintiff negligence lawsuits against nursing homes.
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