About four years ago we posted about a decision in which the Wisconsin Court of Appeals reversed a trial court’s injunction requiring the administration of a certain medication to treat a patient suffering from COVID-19. In that decision, the party seeking the injunction relied on an unsworn declaration from a physician who stated that he was “generally considered the foremost authority” on the proposed treatment. Gahl v. Aurora Health Care, Inc., 403 Wis. 2d 539, 554-55 (Wis. Ct. App. 2022). That decision rejected the assertions in the declaration and noted that the declaration was “conspicuously devoid of any discussion of the patient in [the] case.” Id. Today’s decision, Kory v. Waters, 2026 WL 2507087 (2d. Cir. Aug. 26, 2026), comes full circle—the physician who offered the declaration in Gahl supporting what might be considered unorthodox treatment was named as a defendant in a medical malpractice claim related to his treatment of a patient with COVID-19. The dismissal of the malpractice claims underscores the broad scope of immunity under the Public Readiness and Emergency Preparedness Act (the PREP Act), 42 U.S.C. § 247d-6d. Even if the treatment might be considered “counter-culture,” if the Act’s requirements are satisfied, it is subject to immunity from suit.
We’ve posted numerous times about the PREP Act, and the blog maintains a scorecard on PREP Act decisions. In a nutshell, the PREP Act provides immunity against suit for all “covered persons” who utilize a broad range of “covered countermeasures” to treat or attempt to treat a patient during a public health emergency.
The plaintiff in Kory sought tele-health treatment for COVID-19 from Dr. Pierre Kory, a doctor who “held himself out as a counter-culture expert regarding COVID-19 treatment.” Id. at *1. Among other things, Dr. Kory prescribed the plaintiff prednisone (a corticosteroid). Plaintiff was then hospitalized with shortness of breath and he received both additional prednisone and a proton pump inhibitor—which was prescribed to “counteract the well-known risk of developing peptic ulcer disease through a protracted course of high dose corticosteroids.” Id. at *2. After leaving the hospital, Dr. Kory prescribed another round of prednisone. Plaintiff alleged that the doctor did not also prescribe a proton pump inhibitor to counteract the risk of peptic ulcer disease. Less than two weeks later, the plaintiff was hospitalized with a perforated ulcer and died of multiple organ failure.
Plaintiff’s estate sued Dr. Kory for negligence, lack of informed consent and violations of the Connecticut Uniform Trade Practices Act (CUTPA). Dr. Kory moved to dismiss based on the immunity provisions of the PREP Act. The district court dismissed the CUTPA claim but held that the PREP Act’s immunity provisions did not apply. Dr. Kory noticed an interlocutory appeal to the Second Circuit and the district court certified a partial final judgement of the CUTPA claim under Rule 54(b) to facilitate the appeal.
The Second Circuit first addressed whether it had jurisdiction to hear the appeal. The district court’s order dismissing one of three claims was not a “final decision” providing appellate jurisdiction under 28 U.S.C. § 1291. But, the court held that the denial of a motion to dismiss addressing immunity under the PREP Act is an immediately appealable collateral order. The collateral order doctrine “allows immediate appeal from orders that are collateral to the merits of the litigation and cannot be adequately reviewed after final judgement.” Id. at *3 (quoting In re Décor Holdings, Inc., 86 F.4th 1021, 1026 (2d Cir. 2023)). The three prongs for showing a decision qualifies for appeal under the collateral order doctrine are that the decision (1) conclusively determines the disputed question, (2) resolves an issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal if it awaits a final judgment. The Second Circuit held that the district court’s decision met these requirements because (1) the district court’s decision purported to determine that Dr. Kory had “no right not to be sued in federal court,” (2) the PREP Act immunity defense is completely separate from the merits of plaintiff’s claims, and (3) the entitlement to immunity is “effectively lost” if the defendant has to continue the litigation through a final judgment before appeal. Id. at *4.
Turning to PREP Act immunity, the court began its analysis by underscoring its broad scope:
[It was] enacted . . . to encourage the expeditious development and deployment of medical countermeasures during a public health emergency by limiting legal liability for losses relating to the administration of medical countermeasures such as diagnostics, treatments and vaccines. The PREP Act provides broad immunity from suit and liability under Federal and state law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure during a public-health emergency.
Id. at *5 (internal citations and quotation marks omitted). Against this backdrop, the court then determined whether Dr. Kory was a “covered person” who utilized a “covered countermeasure” that had a “causal relationship” with the claimed loss. The court held that all three requirements for immunity under the PREP Act were satisfied.
Dr. Kory was a “covered person” because he is a “licensed health professional . . . authorized to prescribe, administer or dispense [covered] countermeasures” under applicable law. Although Dr. Kory was not authorized to practice law in Connecticut (where the patient resided), he satisfied Connecticut’s law regarding the provision of medical treatment by out of state physicians on a temporary basis.
Plaintiff conceded that the prednisone used for treatment was a covered countermeasure, so that was not contested. But the court underscored that, even without the concession, the prescription of prednisone was a covered countermeasure under the PREP Act because it was “any drug . . . used to treat, diagnose, cure, prevent, or mitigate COVID-19.” Id. at *7.
Plaintiff argued that the prescription of prednisone alone was not the sole cause of the death, since he alleged that the co-prescription of a proton pump inhibitor would have prevented the death. But the court rejected the argument that the covered countermeasure had to be the “sole cause” of an alleged loss. Such an interpretation would conflict with the broad language of the PREP Act:
the statute uses expansive language to describe the causal relationship required to trigger immunity, including claims for loss “relating to” the use or administration of a covered countermeasure. That broad language is inconsistent with a requirement that the countermeasure be the sole cause of the alleged loss. And in specifying the scope of the immunity provision, Congress merely required “a causal relationship” between the covered countermeasure and the alleged loss. . . . In summary, a “sole” cause requirement is inconsistent with Congress’s intent as gleaned from the text of the PREP Act.
Id. at *8-9 (internal citations omitted).
In addition to holding that Dr. Kory was immune to the negligence and lack of informed consent claims, the court also held that the CUTPA claim should be dismissed because it was merely a medical malpractice allegation recast as an unfair trade practices claim. The allegations that the prescribing physician was “overly focused on his brand and business” looked nothing like the cases in which Connecticut courts recognize viable CUTPA claims against physicians.
PREP Act immunity is very broad. Even if a covered treatment is prescribed by a self-proclaimed “counter-culture” expert on treating COVID-19, immunity applies.