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May 17, 2024- by Steven E. Greer
Hospitals were given a license to kill when the PREP Act was passed in 2020. That is how they so boldly turned patients away who were sick, committed atrocities with ventilators, denied lifesaving ivermectin, hydroxychloroquin, etc.
Well, a New York court today opened a crack in the damn. It ruled that DENYING drugs is not protected by PREP immunity. The Order states:
“PREP, upon which South Nassau principally relies, was initially promulgated by congress in 2005 in response to the SARS epidemic “[i]n order to encourage the use of products, drugs, and devices designed to address epidemics and pandemics” which are approved by the Federal Drug Administration, and imbues the Secretary of Health and Human Services (hereinafter the “Secretary”) with the “authority to make declarations that have the effect of conferring immunity on certain persons from federal and state liability” (Shapnik v Hebrew Home for Aged at Riverdale, 535 F.Supp.3d 301, 304 [SDNY 2021]).
As relevant here, 42 USC § 247d-6d (a) (1) provides, in pertinent part, that “a covered person shall be immune from suit and liability under Federal and State law with
respect to all claims for loss caused by, arising out of, relating to, or resulting from the
administration to or the use by an individual of a covered countermeasure if a declaration
…has been issued with respect to such countermeasure.” Relatedly, 42 USC § 247d-6d (a)(2)(B) provides, in relevant part, that “[t]he immunity under paragraph (1) applies to an claim for loss that has a causal relationship with the administration to or use by an
individual of a covered countermeasure, including a causal relationship with the…administration…of such countermeasure.”
Of further relevance herein, on March 17, 2020, the Secretary declared a “covered countermeasure” to be “any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19” (NYSCEF Doc. No. 22 at p. 8).
As an initial matter, the Court notes that on this record, as thus far developed, there appears to be no dispute as to South Nassau being a “covered person” or Ivermectin being characterized as a “covered countermeasure” within the ambit of PREP. However, contrary to South Nassau’s assertions, the Plaintiff’s complaint neither “pleads a ‘claim[] for loss…relating to’ the use and administration of covered countermeasures to treat COVID-19” nor does it “arise[] solely from…[South Nassau’s] acts and decisions in dispensing covered countermeasures to…[the Decedent] for the treatment of her COVID-19 infection” (NYSCEF Doc. No. 17 at pp. 2, 11). Rather, in stunning contrast to South Nassau’s assertions, the complaint alleges, with particularity, that South Nassau “acted wrongfully and negligently, by repeatedly refusing to administer ivermectin to…[the Decedent]” notwithstanding it “having been prescribed” by Dr. Clark and “despite clear evidence in the medical records that…[the Decedent’s] condition showed significant improvement once the ivermectin treatment was initiated” (NYSCEF Doc. No. 5 at ¶ 60)
In the instant matter, PREP confers “immunity only from ‘any claim for loss
that has a causal relationship with the administration to or use by an individual of a covered countermeasure’” (Hudak v Elmcroft of Sagamore Hills, 58 F4th 845, 849 [6th Cir 2023] quoting 42 USC § 247d-6d [a][2][B]) and not with respect to “such a measure’s non-
administration or non-use” (Hampton v California, 83 F4th 754, 763 [9th Cir 2023]), the
latter of which is the central predicate upon which the Plaintiff’s complaint is based.
Consistent with the above, the factual claims alleged in the complaint, which must be accepted as true and afforded the benefit of every favorable intendment (Nonnon v City of New York, supra at 827), are unequivocally based upon South Nassau’s “non-administration” of Ivermectin and accordingly the immunity afforded under PREP is inapplicable (Hampton v California, supra at 763).
Accordingly, it is hereby ORDERED, that South Nassau’s application for an order dismissing the Plaintiff’s complaint is DENIED, in its entirety;”