The federal Public Readiness and Emergency Preparedness (PREP) Act preempts an action brought under New York state law for negligence and battery by the mother of a kindergartner who was immunized against the flu without her approval, an upstate appeals court has ruled. The 2005 federal law was invoked in 2009 by the U.S. Health and Human Services secretary amid the H1N1 outbreak. Then-governor David Paterson, in turn, declared a health emergency and authorized state and local health agencies to establish vaccination programs for the public. At a clinic in St. Lawrence County, Madison Parker’s mother sued after Madison was vaccinated.
But in Parker v. St. Lawrence County Public Health Department, 514446, the Appellate Division, Third Department, held that the preemption clause in the PREP Act, as well as the statute’s immunity provision, precludes state common-law and statutory tort claims. “Liability protections for pandemic countermeasures taken by certain ‘covered persons’ in response to a declaration of a public health emergency by the Secretary are specifically provided for in the PREP Act,” Presiding Justice Karen Peters (See Profile) wrote for the unanimous panel on Nov. 21. “We must presume that Congress fully understood that errors in administering a vaccination program may have physical as well as emotional consequences, and determined that such potential tort liability must give way to the need to promptly and efficiently respond to a pandemic or other public health emergency,” Peters wrote. Justices Robert Rose (See Profile), Bernard Malone Jr. (See Profile), Leslie Stein (See Profile) and John Egan Jr. (See Profile) concurred.
