When we think about immunity, we usually think about being resistant to a disease. Immunity is the ability to shrug off an infection, to ignore a virus.
It’s an idea that has occupied us for much of the last year. The possibility of being immune to covid-19 because of having already had the disease. The manufactured immunity of a vaccine.
But there is another use of that word — a legal one.
It’s the state of being exempt from consequences. Legal immunity could mean that someone would not be prosecuted for a crime in a plea deal. It might mean the way a public official is insulated from personal liability for an official action.
Or it might mean a kind of inoculation against civil liability.
That’s what Brighton Rehabilitation and Wellness Center’s lawyers claimed in a recent court filing where they invoked the federal Public Readiness and Emergency Preparedness Act as the shot that protects the nursing home from being sued.
Brighton Rehab in Beaver County emerged early in the coronavirus pandemic as not just one of the most prominent long term care outbreaks in the state but in the country. Hundreds of people — both residents and staff — tested positive and more than 70 died. Fifteen people who lived at the home or their families are suing for claims including corporate negligence, vicarious negligence and wrongful death.
The 2005 act says that health care providers “shall be immune from suit and liability under federal and state law,” so the attorneys’ argument does make sense.
Except that Senior U.S. District Judge Arthur J. Schwab refuted it when it was similarly raised in another case — the covid-related death of Brighton housekeeper Elizabeth Wiles. In that case, Schwab said the PREP Act isn’t a shield for “willful misconduct.”
Whether that is the case with Brighton remains to be seen. The issue is worth keeping in mind, however, as Congress will no doubt raise the argument again this session. The subject of liability shields was a key stumbling block in covid relief legislation negotiations in 2020.
Protecting businesses from the unavoidable, wrath-of-God variety of emergency is worth doing. A doctor should not be held responsible for a death he can’t prevent, for example.
But such legislation should not be a vaccination against taking responsibility for the kind of willful misconduct Schwab cited in his decision.