Secretary of Health and Human Services Signs Federal Declaration Providing Immunity to Healthcare Workers from COVID-19 Claims

Written by: Sandra Mekita Cianflone, Esq.

During this growing epidemic, the last thing healthcare workers want to think about it is potential litigation for any care and treatment rendered to patients who contract COVID-19. On March 10, 2020, the Secretary of Health and Human Services signed a Declaration providing healthcare workers immunity from COVID-19 claims for care and decisions made from February 4, 2020 until October 1, 2024.

The Declaration was made pursuant to the Public Readiness and Emergency Preparedness (PREP) Act. More specifically, the declaration was made under the “Targeted liability protections for pandemic and epidemic products and security countermeasures,” section of the Act. The Declaration provides:

[L]iability immunity to certain individuals and entities (Covered Persons) against any claim of loss caused by, arising out of, relating to, or resulting from the manufacture, distribution, administration, or use of medical countermeasures (Covered Countermeasures), except for claims involving “willful misconduct”…

“Covered Persons” under the PREP Act include manufactures, distributors, program planners, and qualified persons, and their official agents, and employees who prescribe or use covered countermeasures.

Of the more ambiguous “Covered Persons” listed above, “program planners” include those who supervise or administer a program dealing with covered countermeasures and includes those people who establish requirements, provide policy guidance, or supplies technical or scientific advice or assistance to provide a facility to administer or use a covered countermeasure. A “qualified person” includes a licensed health professional or other individual authorized to prescribe, administer, or dispense covered countermeasures under the law of the state in which the covered countermeasure was prescribed, administered, or dispensed.

A “Covered Countermeasure” as it relates to this declaration must be a “qualified pandemic or epidemic product”, a “security countermeasure”, or a drug, biological product or device authorized for emergency use. Generally, this includes any drug or device specifically manufactured, used or designed to treat or cure a pandemic/epidemic or to limit the harm the same would otherwise cause. This would also include any drug or device used to treat a serious or life-threatening disease or condition caused by or one intended to enhance the efficacy of a drug, biological product, or device.

In sum, this Declaration from the Secretary of Health and Human Services provides for immunity to those in the healthcare industry who are on the front lines of tackling this crisis every day. Although this Declaration is coming from the Federal level, we continue to monitor whether States will follow suit and provide healthcare workers immunity from claims on the local level.