Under the PREP Act: “[A] covered person shall be immune 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 if a declaration under subsection (b) has been issued with respect to such countermeasure.

Background Facts

A lawsuit was filed against Milford Center, a skilled nursing facility owned, operated, and managed by the defendants, located in Milford, Delaware, on behalf of Maryanna Morra. Morra was admitted to Milford Center in February 2020 because she was not taking care of herself and contracting urinary tract infections. She had a history of type 2 diabetes, heart issues, kidney issues, and high blood pressure.

Morra died of COVID-19 in April 2020, shortly after the onset of the pandemic. The plaintiffs claimed that the defendants failed to hire sufficient staff to care for their residents, implement infection prevention and control plans, screen visitors and staff, isolate patients, conduct consistent COVID-19 screenings of patients, and timely refer patients to higher levels of care.

The plaintiffs’ Amended Complaint contained two counts: (1) Count I claimed negligence, and (2) Count II claimed wrongful death. The defendants filed their motion to dismiss on the grounds that the immunity provision of the PREP Act required the court to dismiss the action against them because the defendants are “covered persons” who were conducting “covered countermeasures” under the PREP Act.

The court denied the motion to dismiss, stating: “the Amended Complaint alleges “ordinary” negligence not protected by the PREP Act and the Plaintiffs’ claims are sufficiently pled … it is unnecessary to address the “covered person” issue because the Amended Complaint is not concerned with covered countermeasures … the Plaintiffs here assert claims regarding the allegedly negligent administration of basic infectious disease protocols. Further, many of the allegations refer to the Defendants’ failure to act, rather than the administration of some countermeasure. The Court held in Hansen that there is no PREP Act immunity for not employing a countermeasure.”

The court further ruled: “Here, direct allegations are made against the Defendants for its failure to hire sufficient staff to care for residents, implement infection prevention and control plans, screen visitors and staff, isolate patients, conduct consistent COVID-19 screenings of patients, and timely refer a patient to a higher level of care. These allegations are not, as the Defendants suggest, “threadbare” conclusions “wholly insufficient to overcome a motion to dismiss.” The Court is satisfied that the Amended Complaint sufficiently gives notice to the Defendants of the claims against them.”

Morra v. 700 Marvel Road Operations, LLC, Superior Court of the State of Delaware, C.A. No N22C-03-213 CEB, Memorandum Opinion filed on August 21, 2023.

If you or a loved one suffered injuries (or worse) while a resident of a nursing home in Delaware or in another U.S. state due to COVID-19, nursing home neglect, nursing home negligence, nursing home abuse, nursing home understaffing, or resident on resident abuse, you should promptly find a Delaware medical malpractice lawyer, or a local nursing home claim attorney in your U.S. state, who may investigate your nursing home claim for you and file a nursing home claim on your behalf or on behalf of your loved one, if appropriate.

Visit our website to be connected with nursing home malpractice lawyers in your U.S. state who may assist you with your nursing home claim, or call us toll-free in the United States at 800-295-3959.

Turn to us when you don’t know where to turn.