Nursing Home Cannot Use PREP Act to Block State Suit for COVID-Related Death, Seventh Circuit Rules

September 15, 2022 | Aging Services Risk Management


​Nursing homes cannot use the Public Readiness and Emergency Preparedness (PREP) Act, which generally provides immunity against suit for losses stemming from the use of "covered countermeasures," to completely preempt state law claims for residents' COVID-related deaths by removing such claims to federal court, the U.S. Court of Appeals for the Seventh Circuit has held. Thus far, every other federal circuit court to address the issue—the Third, Fifth, and Ninth Circuits—has come to a similar conclusion, at least regarding claims that do not involve willful misconduct.

A nursing home resident died of COVID-19 in May 2020. Acting as administrator of the estate, the resident's daughter sued the nursing home under the Illinois Nursing Home Care Act. The nursing home tried to remove the case to federal court, seeking immunity from suit under the PREP Act. The federal district court found that the suit could not be removed to federal court, sending the case back to state court. The nursing...

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