In the midst of one of the worst and most far-reaching health crises in American history, extraordinary measures are being implemented across all segments of society. The state-wide shutdown necessitated by the COVID-19 pandemic has impacted literally every New Yorker. As the health care system is under tremendous stress to diagnose and treat the unfathomable numbers of persons anticipated to become infected with the virus, the existing resources in terms of facilities, hospital beds, medical equipment and health care professionals are grossly insufficient to meet those needs. Under these unprecedented circumstances, actions have been taken at the federal and state levels to address this need for resources. Some of those measures will be consequential to persons injured by medical negligence related to this crisis. They are only a small part of what is needed, but they are needed. So be it.
At the federal level, the Department of Health and Human Services (HHS) has submitted a declaration under the Public Readiness and Emergency Preparedness Act (PREP Act) relative to COVID-19. The PREP Act (42 U.S.C. §§247d-6d, 247d-6e), which was passed in 2005, provides for limited, temporary immunity from civil liability for “covered persons” in relation to “covered countermeasures” during epidemics and pandemics. The statute is fairly detailed, and the present discussion will address the most pertinent provisions.
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