Piercing the Veil of The PREP Act

How to identify Willful Misconduct, Legal options, Nursing Homes

The Public Readiness and Emergency Preparedness Act (PREP Act) authorizes the federal government to shield companies from lawsuits during a declared public health emergency (PHE).

The Sec’y of HHS declared a PHE emergency early in 2020 regarding the COVID virus and has consistently reauthorized the PHE every 90 days since.

With the declaration of The PREP Act, companies have near complete immunity against their products such as vaccines, medical devices, medicines used to treat and combat the COVID virus.

There is one exception to the broad immunity protection of The PREP Act. The term “willful misconduct”.

And this exception carries a very high burden to overcome. And on the horizon, there are several legal proceedings that might pierce the veil of immunity standard known as willful misconduct.

A host of lawsuits filed during the COVID era involve nursing homes, long term care facilities where former patients or their estates have filed wrongful death claims against the facilities alleging their family members contracted COVID as a result of the facilities negligence or failure to act appropriately.

The majority of these lawsuits allege the care facility failed to prevent the spread of the virus.

Attorneys representing the families or estates filed lawsuits in state court claiming wrong death. The long term care facilities were represented by their own set of attorneys that claim that any lawsuit should be in federal court, arguing that the case is best handled and presents a federal question under The PREP Act.

The Office of General Counsel of the Dept of HHS stated in Advisory Opinions that The PREP Act is a complete preemption statute and nursing homes are entitled to the immunity afforded in the Act if they are providing covered countermeasures outlined in the Act or subsequent amendments issued by the Secretary of HHS.

Many federal courts disagree and found that The PREP Act does not apply, allowing the lawsuits to proceed in state court.

In a very recent announcement, The US Supreme Court decided not to take up the case of Saldana v Glenhaven Healthcare. A 6 year resident of Glenhaven, Mr. Saldana died of COVID in May 2020. His family sued. Glenhaven tried to have the case moved to federal court.

The 9th Circuit Court of Appeals rejected Glenhaven’s motion and remanded the case back to state court in California. Other cases in New York, Florida, North Carolina all have rejected arguments to move cases into federal court.

Yet there is one case in California, the Central District of California, issued an order in Garcia v Welltower OpCo Group found that The PREP Act served as complete immunity.

So it does appear that our court system, both state and federal, will have conflicting cases moving forward. This might guarantee the US Supreme Court to take up one of these cases in the future and review the merits of the lawsuits.

Why is this important for those who have been vaccine injured. Simple. It does take time but no law, coercive and unjust, such as The PREP Act toward the vaccine injured, shall remain standing. It was once said, “that those first through the breach, it is bloody. Always.”

Keep learning, keep challenging yourself and always, always question authority.