Reported / Citable
Background
A 44-year-old patient went to a San Bernardino County emergency department with COVID-19 symptoms in August 2021. Dr. Dalia Nassman found him stable, discharged him with supportive-care instructions, and did not administer monoclonal antibodies. The patient returned several days later in respiratory distress and died, after which his survivors sued Nassman and her medical group for negligence.
The defendants sought summary judgment under the federal Public Readiness and Emergency Preparedness Act, commonly called the PREP Act. That statute protects covered people from liability for claims connected to the administration or use of designated medical countermeasures during a declared public-health emergency. The trial court denied the motion, reasoning that immunity for a failure to give treatment required evidence that the particular dose withheld from this patient had been allocated to someone else. The physicians sought writ review.
The Court’s Holding
The Fourth District Court of Appeal directed the trial court to enter summary judgment for the physician and her group. It held that the PREP Act can cover an inaction claim when the decision not to use a covered countermeasure resulted from conscious prioritization or purposeful allocation. The law does not require proof that a specific dose withheld from one patient was instead administered to an identified second patient.
The hospital monitored an unpredictable monoclonal-antibody supply during a surge in demand, and Nassman made a treatment decision after examining the patient and assessing his symptoms. That evidence established deliberate management and allocation of a covered countermeasure. The survivors offered no nonspeculative basis to infer that the omission resulted from a failure to consider the therapy at all. The court therefore found no triable factual dispute and treated PREP Act immunity as a complete defense.
The court rejected decisions that had converted a federal declaration’s example involving one remaining dose and two patients into a strict limitation. The example illustrated purposeful allocation; it did not exhaust all circumstances in which a deliberate decision not to administer treatment relates to use of a countermeasure.
Key Takeaways
- PREP Act immunity may protect a deliberate decision not to administer a covered countermeasure; immunity is not confined to affirmative treatment.
- A defendant need not trace a withheld dose to another patient if the evidence shows conscious prioritization or purposeful allocation.
- Contemporaneous examination notes, supply tracking, and testimony about demand can establish the required decision-making process.
- Pure oversight or a failure to consider the countermeasure may fall outside immunity, so the reason for inaction remains central.
Why It Matters
The decision gives California healthcare providers a broader, practical route to PREP Act immunity for pandemic-era allocation choices. Hospitals that carefully managed limited but not fully depleted supplies are not placed in a worse legal position than facilities that allowed inventories to approach zero.
For malpractice litigants, the factual battleground will often be whether nonuse reflected documented clinical and allocation judgment or simple neglect. Providers should preserve protocols, inventory records, and contemporaneous clinical reasoning; plaintiffs will need concrete evidence that the claimed omission was unrelated to a conscious countermeasure decision.
The ruling is also important at the summary-judgment stage. A well-supported institutional record may eliminate the claim before trial, while generic assertions that a treatment was available will not necessarily create a factual dispute. Counsel should develop both the clinician’s patient-specific reasoning and the facility’s broader allocation practices.