A recent article in Risk & Insurance explored vaccine liability risk for health facilities and their insurers. The biggest concern they noted was uncertainty. This make sense. We are facing a vaccination drive of unprecedented scope. This includes mass vaccinations within stadium lots with thousands of people. There are concerns about maintaining a standard of care in areas such as ensuring compliance with proper monitoring for the CDC recommended 15-to-30-minute time frame post shot, ensuring people come back for the second shot, and even ensuring valid informed consent.
The Public Readiness and Emergency Preparedness Act “the PREP Act” provides almost universal immunity for the administration of these, and established limited compensation funds for patients injured by such countermeasures. But, this does not mean that suits will not be filed. The article noted that one possible source of liability would be health workers bringing the virus home to their families. We have already seen this tactic tried once in a Federal civil action in a suit brought by an employee’s wife who claimed that she contracted COVID-19 because her husband brought it home from work, Kuciemba et al v. Victory Woodworks, Inc., No. 3:20-cv-09355 (N.D. Cal.). The Court found the wife’s claims were barred by the exclusive jurisdiction of the Workers’ Compensation Appeals Board. Another Court may have a different interpretation. The article pointed out that, while such liabilities may be hard to successfully litigate, that does not mean lawsuits will not be filed in the first place. This will lead to higher defense costs, even for frivolous cases. This will eat way at retentions.
While the PREP Act provides a liability shield, health facilities and their insurers will still need to take these risks into consideration.
While such liabilities may be hard to successfully litigate, that doesn’t mean lawsuits won’t be filed in the first place. “You can see an uptick in overall defense costs, even if they’re frivolous,” said Dreyer. “It’s going to eat away at the retentions, especially aggregated retention.”