Pandemic Flu and Medical Biodefense Countermeasure Liability Limitation
Congressional research rept.
LIBRARY OF CONGRESS WASHINGTON DC CONGRESSIONAL RESEARCH SERVICE
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Division C of P.L. 109-148 2005, 42 U.S.C. 247d-6d, 247d-6e, also known as the Public Readiness and Emergency Preparedness Act PREP Act, limits liability with respect to pandemic flu and other public health countermeasures. Specifically, upon a declaration by the Secretary of Health and Human Services of a public health emergency or the credible risk of such emergency, Division C would, with respect to a covered countermeasure, eliminate liability, with one exception, for the United States, and for manufacturers, distributors, program planners, persons who prescribe, administer or dispense the countermeasure, and employees of any of the above. The exception to immunity from liability is that a defendant who engaged in willful misconduct would be subject to liability under a new federal cause of action, though not under state tort law, if death or serious injury results. Division Cs limitation on liability is a more extensive restriction on victims ability to recover than exists in most federal tort reform statutes. However, victims could, in lieu of suing, accept payment under a new covered Countermeasure Process Fund, if Congress appropriates money for this fund. The first PREP Act declaration was issued on January 26, 2007, to limit liability for the administration of the H5N1 influenza vaccine. Since then, declarations have been issued covering countermeasures against other strains of influenza including H1N1, anthrax, botulism, small pox, and acute radiation syndrdme.
APPROVED FOR PUBLIC RELEASE