By: Andrew Silverio, Esq. Entering year three of this pandemic with no clear end in sight, there is still a good deal of uncertainty surrounding who should ultimately be responsible for the expense of some COVID-19 treatment. Followers of our social media and webinars will be somewhat familiar with some of the developments in the workers’ compensation realm. Various states have passed laws establishing COVID-19 as a potential occupational injury, some focusing on first responders and healthcare workers and others doing so more broadly. However, case law is also developing in the more general areas of negligence and wrongful death. Recently, a district court in Texas entertained such a wrongful death claim against a nursing home, where a decedent’s estate alleged that the facility is responsible for the resident’s death by failing to institute and implement infection control programs, as well as by negligently failing to care for the resident, leading to her exposure to and eventual death from COVID-19.
The court rejected the facility’s motion for summary judgment, which asserted that the Public Readiness and Emergency Preparedness Act (“PREP” Act) gave them immunity. In rejecting this argument and finding that the wrongful death claim can proceed, the court explained that the PREP Act exists to shield parties from liability resulting from the use of suggested countermeasures in an emergency situation (such as harm caused directly by the use of masks and other PPE, isolation, etc.), not for an alleged failure to implement safeguards or use those suggested countermeasures. This isn’t new law, but it does remind us of an important concept – when dealing with COVID-19 claims, payers shouldn’t disregard the possibility of third-party liability, even outside the workers’ compensation context. These negligence and wrongful death claims may be more difficult to win and are always very fact-specific, but payers would be well-served to do some investigation and at least inquire whether another payer is in play.