Federal Appellate Court Sends Medical Malpractice Case Back To State Court

Appellate Court Sends Malpractice Case Back To State Court: The United States Court of Appeals for the Second Circuit (“Federal Appellate Court”) stated in its March 7, 2023 decision: “Plaintiff Zachary Solomon sued Defendants St. Joseph Hospital and Catholic Health System of Long Island, Inc. for injuries he sustained at St. Joseph Hospital, where he was admitted in March 2020 with COVID-19. Solomon brought claims for malpractice, negligence, and gross negligence in New York state court.

Defendants removed the case to the United States District Court for the Eastern District of New York and moved to dismiss for lack of subject-matter jurisdiction. Defendants asserted state and federal immunities under the Emergency or Disaster Treatment Protection Act (“EDTPA”), N.Y. Pub. Health Law §§ 3080-3082, and the Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247d-6d, 247d-6e. The district court (Block, J.) denied Defendants’ motion to dismiss.

We conclude that removal to federal court was improper because the district court lacked jurisdiction to hear the case. First, Solomon’s state-law claims are not completely preempted by the PREP Act. Second, there is no jurisdiction under the federal-officer removal statute because Defendants did not “act under” a federal officer. Finally, Solomon’s claims do not “arise under” federal law.

We thus VACATE the district court’s order and REMAND with directions to remand the case to state court.”

PREP Act

The PREP Act provides broad immunity “from suit and liability under Federal and state law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure” during a public-health emergency. 42 U.S.C. § 247d-6d(a)(1). The PREP Act gives the Secretary of the Department of Health and Human Services (“HHS Secretary”) authority to publish a declaration that (1) announces a disease or health condition is a public emergency and (2) defines appropriate covered countermeasures. Id. § 247d-6d(b)(1).

Effective February 4, 2020, the HHS Secretary declared “COVID-19 . . . a public health emergency” and defined “covered countermeasures” as any “antiviral, drug, biologic, diagnostic, device, or vaccine used to treat, diagnose, cure, prevent, or mitigate COVID-19.” Declaration Under the PREP Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198, 15198-01 (Mar. 17, 2020).

The PREP Act contains one exception to immunity for claims “for death or serious physical injury proximately caused by willful misconduct.” 42 U.S.C. § 247d-6d(d)(1). Willful misconduct is defined as “an act or omission that is taken (i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.” Id. § 247d-6d(c)(1)(A).

The PREP Act grants exclusive federal jurisdiction over such claims to the United States District Court for the District of Columbia. Id. § 247d-6d(e)(1). For all other claims, the PREP Act establishes a Covered Countermeasure Process Fund to compensate “eligible individuals for covered injuries directly caused by the administration or use of a covered countermeasure pursuant to such declaration.” Id. § 247d-6e(a).

Solomon was admitted to St. Joseph Hospital on March 23, 2020, after testing positive for COVID-19 and exhibiting severe shortness of breath and a high fever. Soon after his admission, Solomon was intubated for ten days, during which time he developed severe pressure sores.

The Federal Appellate Court stated: “Solomon’s state-law claims for malpractice, negligence, and gross negligence do not fall within the scope of the PREP Act’s exclusive federal cause of action for willful misconduct. As a result, his claims cannot be removed to federal court under the complete preemption doctrine … claims for medical malpractice, negligence, and gross negligence are plainly not “within the scope” of willful misconduct.”

“Second, the PREP Act does not create any other exclusive federal cause of action that might encompass Solomon’s state-law claims. Instead, the PREP Act principally creates an immunity scheme. And immunity has no bearing on complete preemption, which is a jurisdictional doctrine, not a preemption-defense doctrine.”

“It is true that the HHS Secretary and Office of General Counsel view the PREP Act as a complete preemption statute … But we do not defer to the agency’s interpretation of an unambiguous statutory provision concerning the scope of federal jurisdiction.”

“Removal to federal court is not proper under federal “arising under” jurisdiction because Solomon’s complaint does not necessarily raise a federal issue.”

The Federal Appellate Court concluded: “Defendants have failed to show that federal jurisdiction is proper, so Solomon’s state-law claims must be litigated in state court. We thus vacate the district court’s order and remand with directions to remand this case to state court.”

Source Solomon v. St. Joseph Hospital, 21-2729.

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