39 Trial Lawyer • Winter 2023 See COVID-19 Litigation p 40 What I didn’t see coming was the nationally organized and coordinated lobbying machine of the nursing home industry. They fought early and they fought hard to put in place immunity protections for their industry nationwide. According to the National Consumer Voice for Quality Long-Term Care, 11 states issued executive orders granting immunity to nursing homes, and 28 states quickly passed immunity laws including immunity for nursing homes. I learned that the national multimillion-dollar-funded lobbying group for nursing homes calls itself American Health Care Association or AHCA. (That name is eerily similar to the name chosen by the for-profit St. Jude Operating Company, LLC for its nursing facility Healthcare at Foster Creek.) The lobbying stretched into every state, and Oregon was no exception. The AHCA tried to push through immunity laws in Oregon, using the fear of COVID-19 to stoke fear of lawsuits. Honoring their voice My clients are the families of those who died in Foster Creek and none of them are wealthy. Most of their loved ones relied entirely on government assistance. They are working class people who do not have connections to lobbyists or the politically powerful. But they do have a voice, and, fortunately, with the assistance of OTLA, we were able to make sure their voices were heard by our state legislature and governor. Several of my clients came forward to tell their story, showing how the proposed immunity laws cover up the bad acts of nursing facilities like Foster Creek. In the end, the Oregon Legislature did not grant immunity to nursing facilities. At the same time the nursing home industry pushed for legislative immunity, it turned its attention to our courts. Unexpectedly, we were hit with a notice of removal to federal court and a motion to dismiss. These same efforts were made across the country in a coordinated effort to try and wipe out lawsuits against nursing facilities. In the removal actions, the defendants claimed the Public Readiness and Emergency Preparedness (PREP) Act immunized them from all COVID-19 related lawsuits. Having never faced a PREP Act immunity claim before, we immediately dove into the legal research about this obscure (at that time) legislation. But as the pandemic has continued, and loss of life in nursing facilities has continued to outpace that of the general public, PREP Act immunity attempts by nursing facilities have become more commonplace. At last count, there were more than 80 cases nationally where PREP Act immunity was invoked by a long-term care facility in response to COVID19-related claims. So, what is the PREP Act? Enacted in 2005, it was meant to provide some immunity from civil liability and tort claims to certain individuals (called “covered persons”) for claims of loss arising out of certain acts (called “covered countermeasures”). The scope of PREP Act immunity is defined to “appl[y] to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure.” The PREP Act goes into effect after the Department of Health and Human Services Secretary (HHS) dec l are s a publ i c hea l th emergency. In March of 2020, the Secretary of the Department of Health and Human Services issued such a declaration, bringing claims related to the COVID-19 pandemic and its countermeasures within the purview of the PREP Act. When it applies, the PREP Act preempts most civil claims and provides immunity to covered persons for their use of covered countermeasures unless the death or serious injury was caused by “willful misconduct” (defined in the PREP Act as “greater than any form of recklessness or negligence”). The Countermeasures Injury Compensation Program (CICP) is meant to compensate anyone seriously injured by covered countermeasures . CICP provides compensation for individuals who can demonstrate they were harmed from the administration or use of covered countermeasures. Throughout the pandemic, HHS has issued several amended declarations and one advisory opinion. (We’ll examine the impact of those in a moment.) In courts, the defendants were trying to make all claims subject to the PREP Act, which meant families of the harmed could only ask for compensation from the CICP and could not pursue traditional tort theories in state court except for deaths caused by “willful misconduct.” In response, we filed a motion to remand. Two arguments led to us prevailing on our remand motion. Action to protect First, we asserted that Foster Creek had failed to use appropriate and recommended countermeasures. The purpose of the PREP Act is to encourage t h e d e v e l o pme n t a n d u s e o f countermeasures to combat public health emergencies. It makes sense that it provides immunity when covered persons use covered countermeasures, but it doesn’t make sense when, as in our case, the allegations hinged on a failure to use countermeasures. Take vaccinations as a hypothetical example (which were not available in the spring of 2020 and are not at issue in our case against Foster Creek). If a medical facility administered a COVID-19 vaccine to patients before it was FDA approved (as was the case in 2021) and patients were harmed by the vaccine or its administration, that use of a covered countermeasure during a global pandemic would be exactly the kind of action that would fall squarely within the PREP Act’s immunity provisions. These hypothetical patients might not have traditional tort law remedies available to them. Contrary to that scenario, the unfortunate residents at Foster Creek
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