In the fall of 2021, a 15-year-old minor went to a pharmacy in Kansas to be vaccinated against Covid-19 without parental consent.

Since the Kansas law requires parental consent for medical treatment or procedures if the minor is under the age of 16, the mother of the child filed suit against the pharmacy and the pharmacist who administered the vaccine to her son asserting claims for (i) invasion of the right of privacy, by intruding on the private relationship between her and her child and violating Mother's parental right of control; (ii) negligence based on the pharmacist’s failure to secure consent, warn of the vaccine's risks, and inform of acceptable alternative treatments, among other alleged failures; (iii) negligence against the pharmacy based on vicarious liability and the failure to train employees and institute proper policies. In reply to these contentions, the defendants argued that they were immune from liability under the PREP Act since all the plaintiff’s claims were causally linked to their administration of the vaccine to her son. Indeed, the PREP Act was passed in 2005 to protect “covered individuals [...] from lawsuits during a public-health emergency”. More precisely, the PREP Act provides that when the Secretary of the Department of Health and Human Services publishes a declaration recommending certain covered countermeasures, covered individuals become immune from suit and liability from claims related to the administration of a covered countermeasure. Since in March 2020 the Secretary declared that Covid-19 was a public-emergency, the statute became applicable for activities related to medical countermeasures against Covid-19. Namely, the Secretary identified the covered countermeasures for which liability immunity was in effect as "any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate Covid-19" that also meets the definition of "covered countermeasure" provided in the Act.

The first instance Court dismissed all plaintiff’s claims except those related to parental consent. Based on the assumption that claims on parental consent involve a fundamental constitutional right (the parents’ right to decide their children’s care), the Court found that the Congress would not have made the PREP Act applicable to such claims by mere implication. Thus, the fact that the Act did not specifically state that it preempted claims based on parental consent necessarily meant that it did not extend to such claims.

Such a decision was later reversed on appeal. Namely, by decision of 28 April 2023, the Court of Appeal of Kansas held that the defendants were immune from liability under the PREP Act in respect of all plaintiff’s claims, including those on parental consent. Indeed, the Court found that the text of the Act is unambiguous: it applies to all claims causally related to the administration of a covered countermeasure. Since the parental consent claim was causally related to the administration of a covered measure (i.e., the Covid-19 vaccine), the defendants were immune from liability. To support its stance, the Court also referred to a recent federal ruling in a similar matter which affirmed that the PREP Act bars claims arising from the administration of a Covid-19 vaccine without consent.

Reference: M.T. v. Walmart Stores et al., Court of Appeal of Kansas, 28 April 2023.

News available at en