The Nevada Supreme Court holds that neither the Public Readiness and Emergency Preparedness Act (PREP) Act nor Nevada’s Emergency Directive 011 grants immunity to a facility that did not enact a COVID-19 plan. The Heights of Summerlin, LLC v. District Court (Nev. No. 86214, October 3, 2024).
Shortly after residing in a skilled nursing facility known as The Heights of Summerlin, Aletha Porcara died of COVID-19. Her daughter sued the facility and its parent companies for failing to implement COVID-19 safety protocols. After the district court partially denied the facility’s motion to dismiss, the facility petitioned the Nevada Supreme Court for a writ of mandamus, arguing that the PREP Act and Directive 011 shielded it from the claims.
The highest court of Nevada considers whether the PREP Act and Nevada’s Emergency Directive 011 grant immunity to a health care facility sued for lacking a COVID-19 safety policy. This raises the following questions. Does the PREP Act apply when a facility fails to prevent the spread of the disease? Does Directive 011 grant facilities immunity from liability?
The court entertains the petition as a matter of advisory mandamus relief. Whether the PREP Act and Directive 011 cover the failure to implement COVID-19 safety programs is an important legal question. Under the PREP Act, when the Secretary of the Department of Health and Human Services declares a public health crisis, facilities have immunity for claims related to covered countermeasures, absent willful misconduct. COVID-19 is a declared public health crisis. Directive 011 grants immunity to medical providers during the pandemic.
Federal courts have found that the failure to implement programs does not invoke the protection of the PREP Act. None of the allegations against the facility involve the use of a covered countermeasure. The failure to follow infection control procedures is not a countermeasure. Since the claims arise from the lack of an infection prevention plan, the PREP Act does not grant the facility immunity.
In its list of providers granted immunity, Directive 011 refers to individual medical providers and does not list health care facilities. Meanwhile, other states with similar directives included facilities. Yet since Directive 011 also does not explicitly exclude them, the plain language is inconclusive. Under the doctrine of ejusdem generis, when a general word or phrase follows a specific list, the general term only includes the same type of things listed. Here, the list of providers includes the term “without limitation.” Because the list only contains providers, this does not encompass facilities.
Although Directive 011 does not grant outright immunity to facilities, a facility could be immune through the doctrine of respondeat superior if the injury stems from an immune individual. In this case, the injury comes directly from the facility, so Directive 011 does not apply.
Nevada’s highest court concludes that neither the PREP Act nor Directive 011 shields the facility from liability for lack of an infection prevention plan. The PREP Act does not apply to noncountermeasure inactions, and Directive 011 does not shield facilities. The petition for a writ of mandamus is denied.
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