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Does the PREP Act protect against medical negligence?

The federal Public Readiness and Emergency Preparedness (PREP) Act went into effect in 2005 to shield doctors and other medical professionals from liability during public health emergencies.

In March 2020, former Health and Human Services Secretary Alex Azar invoked the act for cases related to COVID-19 treatments. But a Missouri neurosurgeon now claims the PREP Act protects him after he admitted operating on the wrong side of a patient’s spine.

The patient remains in “constant pain”

In June 2020, Natalie Avilez had what was termed “routine” spine surgery at a St. Louis hospital to relieve chronic back pain. However, when she woke up, she discovered the surgeon operated on the wrong side of her back.

Before she was out of recovery, the doctor tried to get her authorization for another surgery in the correct location. However, the charge nurse did not allow him to get permission because Avilez wasn’t fully awake.

She eventually agreed to another procedure the following day. But, the second surgery didn’t alleviate her pain, instead making things worse. Avilez says, to this day, she’s in constant pain.

The patient’s lawsuit is countered with a surprising claim

In January 2021, Avilez filed a medical malpractice lawsuit against Dr. Fangxiang Chen and Mercy Hospital in St. Louis.

A few weeks after Avilez filed the lawsuit, Dr. Chen responded, saying he couldn’t be sued because he is protected by the PREP Act, which went into effect three months before his surgical mistake.

Avilez’s lawyer says COVID-19 had nothing to do with Dr. Chen operating on the wrong side of her back. He added the PREP Act does not protect medical professionals from negligence.

The case could be a sign of things to come

Even groups advocating on behalf of medical malpractice victims say this case is not so cut-and-dry. Language in the PREP Act says it doesn’t protect doctors from claims of “willful or intentional misconduct.” Some fear that may be difficult to prove, especially during a pandemic.

Meantime, several states have either passed or are considering widening protections for healthcare professionals against the thousands of expected COVID-related claims. One malpractice victim advocate says doctors view these efforts as “get out of jail free” cards.

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