Legal Briefs: PREP Act as Defense In Wrong Side Operation Lawsuit

In a highly unusual move, a Missouri physician sued by a patient for performing surgery on the wrong side of the patient’s spine has raised the Federal Public Readiness and Emergency Preparedness Act (known as the PREP Act) as his defense.

Clinical Scenario

The patient had been referred to the neurosurgeon after experiencing intense back pain for over a year. She was diagnosed with a disk issue and the doctor suggested a hemilaminectomy to relieve her pain. The patient agreed. But, according to a lawsuit filed later by the patient, the doctor mistakenly operated on the wrong side of her spine. According to the patient’s complaint, as she was waking up from anesthesia, the doctor began explaining what had happened and attempted to get her to authorize surgery on the right side, but a charge nurse intervened because the patient was not fully awake enough to give consent. The following day, the patient agreed to have the surgery redone, but ultimately was left in worse pain.

She sued the physician and his practice for medical malpractice in January 2021, and several weeks later the physician’s legal response contained a surprising defense–it alleged that the physician was immune from liability due to the PREP Act.

The PREP Act

The PREP Act, instituted in March 2020, provided legal immunity to health care providers who were working to stop the spread of COVID-19. Missouri is currently seeking to pass Senate Bill 51 which would shield the state’s businesses and medical providers from all lawsuits related to COVID-19 exposure. Patient advocates in the state are concerned that the law could end up giving immunity to virtually any malpractice that takes place during the pandemic, if, for example, a health care provider claimed that their activities were impacted by COVID-19 because they were wearing a face mask while treating a patient.

The case against the neurosurgeon is ongoing. It is highly unlikely that he will succeed using the PREP Act defense, as COVID-19 was not an issue.

Ann W. Latner, JD, is a freelance writer and attorney based in New York. She was formerly the director of periodicals at the American Pharmacists Association and editor of Pharmacy Times.