Liability for Deadly Failure: Rejecting the Push for PREP Act Preemption and Restraining PREP Act Immunity for Senior Living Facilities and Nursing Homes
In the wake of COVID-19, there has been a surge of wrongful death cases filed by plaintiff families in state courts. These families allege that their loved one contracted and died from COVID-19 because the nursing home or senior living facility at which their loved one resided failed to take proper COVID-19 prevention measures. In response, defendant facilities have removed these actions to federal court, arguing that the PREP Act preempts plaintiffs’ state law claims and grants facilities immunity from liability for loss related to qualified actions taken during a public health emergency. This Comment rejects facilities’ push for preemption which has been used as a tactic to stretch out litigation and to encourage plaintiff families to settle their cases for less. This Comment also encourages amendment of the PREP Act immunity laws to clarify that the Act does not preempt state law claims but does restrict senior living facilities and nursing homes from the privilege of immunity for loss resulting from a failure to act. Restraining immunity in this way will hold facilities accountable for their deadly failure to take COVID- 19 safety precautions and will incentivize facilities to take more stringent precautions when caring for their elderly residents in the future.
Mai R. Contino
Liability for Deadly Failure: Rejecting the Push for PREP Act Preemption and Restraining PREP Act Immunity for Senior Living Facilities and Nursing Homes,
50 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol50/iss1/4