In a Jan. 13, 2021, article published by the healthcare news site STAT, McGuireWoods partners Samuel L. Tarry and Davis M. Walsh called on Congress to ensure that the distribution chain for COVID-19 vaccines is shielded from the distraction of civil actions.
“Whatever struggles and shortages the U.S. health care system endured throughout 2020, we can at least be thankful that the people fighting to save lives weren't simultaneously fighting lawsuits,” the authors wrote in the article, published in STAT’s “First Opinions” section. “But these protections might not be guaranteed in the coming months.”
The authors noted that Secretary of Health and Human Services Alex Azar issued a declaration under the 2005 Public Readiness and Emergency Preparedness (PREP) Act giving broad liability protection to a group of individuals and organizations working to provide "countermeasures" against the coronavirus. But some judges have interpreted the act as shielding only the physical administration of a vaccine, while allowing patients who do not receive a vaccine to sue providers. Tarry and Walsh argued that closing that gap is critical at a time when supplies are limited and providers must give priority to vulnerable populations.
“Do we really want clinics and pharmacies prioritizing limited vaccine supplies not for those most in need but for those perceived as most likely to sue?” the authors wrote.
Tarry and Walsh are partners in McGuireWoods’ Products, Environmental & Mass Torts Litigation Department and editors of the book “Infectious Disease Litigation: Science, Law and Procedure," which will published next month by the American Bar Association.