top of page

Federal PREP Act Updates

Passed in 2005, the federal Public Readiness and Emergency Preparedness Act (“PREP Act”) does several significant things to shield individuals and corporate entities from liability for injuries sustained during a national public health emergency. However, according to the federal United States Court of Appeals for the Second Circuit, which includes New York (the “Second Circuit”), it does not provide for federal jurisdiction for unremarkable negligent claims occurring during a public health emergency.

With the federal government, and most State governments, ending the COVID-19 national and State emergencies, plaintiff law firms have come out of the proverbial woodwork to bring claims of nursing home abuse and neglect relating to the unfortunate deaths nursing home residents suffered as a result of contracting the COVID-19 virus. The claims levied in these lawsuits generally allege the nursing home and its staff were negligent in failing to stop the spread of COVID-19 allowing the virus into the nursing home. While some complaints have alleged specific acts and omissions on behalf of the homes, most allege the run of the mill claims of negligence. Understanding when, and to which types of claims, the PREP Act applies is critical.

First, the PREP Act authorizes the HHS Secretary to declare a disease a public emergency and define appropriate covered countermeasures. Second, the PREP Act provides immunity from liability in connection with covered countermeasures administered during a public-health emergency. A “covered countermeasure” is defined under the PREP Act as a pandemic product, drug, or other device. The PREP Act contains an immunity exception for claims for death or serious physical injury occurring during a declared public emergency with a carve out exception for injuries proximately caused by willful misconduct.

Most recently in Solomon v. St. Joseph Hospital, 62 F. 4th 54 (2d. Cir. 2023), the Second Circuit evaluated whether the PREP Act would preempt state law claims of medical malpractice, negligence, and gross negligence. Plaintiff Zachary Solomon sued St. Joseph Hospital and the Catholic Health System of Long Island, Inc. for injuries he sustained while admitted for COVID-19 in March of 2020. The defendants argued for removing the case to federal court for three reasons. First, the PREP Act completely preempts Solomon’s state-law claims. Second, defendants were subject to federal regulations, bringing them under the federal-officer removal statute. Third, Solomon’s claims arise under federal law.

A claim falls within the federal court’s original jurisdiction, for removal purposes, only in those cases where a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolving a substantial question of federal law.

According to the Second Circuit, the plaintiff’s medical malpractice, negligence, and gross negligence claims were “plainly not within the scope” of willful misconduct. Negligence and gross negligence do not rise to the level of willful misconduct. The PREP Act defines willful misconduct as “a standard for liability that is more stringent than a standard of negligence in any form.” 42 U.S.C. § 247d-6d(c)(1)(B). Medical malpractice just requires showing a deviation from the community standards of practice that proximately caused the injuries.

Addressing the defendant’s second argument, the court found that the defendants’ role during the COVID-19 pandemic has nothing to do with whether they are acting under a federal officer. The government merely deeming an industry important is not sufficient to confer federal jurisdiction.

Evaluating the defendant’s third argument, the Second Circuit held that there was no substantial issue arising under federal law that permitted removal. Mirroring other circuit courts, the court remanded the case to be litigated in state court.

Our firm has extensive experience counseling employers/businesses and others on statutory requirements, as well as preparing and implementing applicable policies. If you have any questions related to this Legal Briefing, please contact any member of our firm at 585-730- 4773.

When Being Prepared Just Isn’t Enough
Download PDF • 182KB


This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2023 Law Offices of Pullano & Farrow PLLC


bottom of page