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People from all echelons of society have called the COVID-19 pandemic an unprecedented time. This unprecedented time has not only led to major changes in Americans’ daily lives, but has also had effects on the legal fibers of this country. Because of the pandemic’s unprecedented nature, the laws in place prior to the pandemic proved to be ill-equipped in dealing with the new circumstances that were at play. This was particularly true when looking at the medical field, and related industries, which was affected the most by the pandemic. Additionally, with increasing uncertainty surrounding how COVID-19 should be treated, the disease brought up conversations about how liable providers should be for healthcare mistakes made at a time when scientists were unsure what the correct course of action should be. Due to this uncertainty, many states enacted temporary laws which would provide immunity for healthcare workers from the deaths incurred by COVID-19. One of these states was New York, which, in April of 2020, passed the Emergency and Disaster Treatment Protection Act (EDTPA). This act gave immunity to all healthcare providers working in New York during the pandemic from liability for the deaths that occurred in their health facilities due to COVID-19. However, though the pandemic was still very much active, this Act, like similar ones in many other states, was repealed last spring. Without these temporary state laws, the only barrier standing between healthcare providers and the liability for those who continue to die of COVID-19 is the PREP Act.
The PREP Act, or Public Readiness and Emergency Preparedness Act (public Law 109-148), was enacted on December 20th, 2005 by the Department of Health and Human Services. Long before COVID-19, this act sought to provide immunity and liability for: claims of loss which are seen as directly the result of countermeasures to disease, claims of a present or credible future risk of a public health emergency, and corporations/individuals who are involved in the development, manufacturing, testing, distribution, administration, and use of countermeasures. Notably, this Act did not present immunity from claims involving ‘willful misconduct.’ Moreover, the PREP Act was different from other emergency declarations as it dealt with the immunity from liability of particular entities and individuals. As mentioned earlier, the act existed for many years prior to COVID-19, and has been used to protect healthcare workers during past virus outbreaks, such as with Ebola and Zika.
Because of its role in protecting healthcare professionals from liability in times of a public health emergency, the PREP Act has played a particularly important role in protecting the rights of healthcare providers during the ongoing pandemic. The importance of protection from liability can be seen in how the Act has evolved over the course of the COVID-19 crisis. Though the Secretary of the Department of Health and Human Services first declared the use of the PREP Act in the COVID-19 pandemic on February 4th, 2020, over the course of the following year and a half it was amended nine times. This number of changes was more than the act had ever been amended during its use for other health crises. Most of the amendments (5-9) further clarified and increased the number of people who would be considered qualified persons in dispensing and administering the vaccines. This change was due to the fact that, unlike in any previous situation, the COVID-19 pandemic brought about the mass provisions of vaccines through private pharmacies (CVS, Walgreens, etc.) in addition to hospitals and medical centers. The act was additionally amended in order to clarify which countermeasures to the COVID-19 pandemic would be used in the many months that preceded vaccine rollout. Overall, the evolution of the PREP Act throughout the COVID-19 pandemic demonstrates the pandemic’s unprecedented nature. Additionally, the Act’s progression shows how the future is never certain, and that laws must change and grow to help with new situations that arise. If this evolution had not occurred, then many healthcare workers, either working in the field or adjacent to it, could have been held liable for the tremendous amount of deaths that were medically unpreventable. Due to this reality, the large role that the Act played in the Pandemic also helps demonstrate the importance of legal protections for medical professionals in times of scientific uncertainty. Though states may provide temporary legislation in times of crisis, it is important that major pillars of society like healthcare professionals receive the legislation that allows them to do their best in helping the community, even in unprecedented times.