Filed 8/18/26 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
DALIA M. NASSMAN et al., Petitioners, E086361 v. (Super.Ct.No. CIVSB2215995)
THE SUPERIOR COURT OF SAN OPINION BERNARDINO COUNTY,
Respondent;
KARINA MCGINNIS et al., Real Parties in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. Tony Raphael, Judge.
Petition granted.
Hewitt & Raphael; Skane & Mills, Stephen L. Hewitt, Stacy L. Raphael, and Marissa F. Feinstein; Pollak, Vida, & Barer, Daniel P. Barer, and Emily Vida for Petitioners.
Cole Pedroza, Curtis A. Cole, and Alysia B. Carroll for the American Medical Association, California Medical Association, California Dental Association, and California Hospital Association as Amici Curiae on behalf of Petitioners.
No appearance for Respondent.
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McCune Law Group, Steven J. Weinberg, Steven A. Haskins, and Andrew Van Ligten for Real Parties in Interest.
In August 2021, an emergency department doctor decided not to administer monoclonal antibodies to a COVID-19 patient and instead discharged him with a recommendation for over-the-counter medications for pain and fever and instructions to return if his condition worsened. Several days later, the patient returned to the emergency department and was admitted to the hospital, but he died.
The decedent’s survivors sued the emergency department doctor and her employer, who are the petitioners here. Petitioners request a writ of mandate directing the trial court to grant them summary judgment. Our order to show cause limited the issue to whether the Public Readiness and Emergency Preparedness Act (PREP Act; 42 U.S.C., § 247d-6d) is a complete defense to petitioners’ alleged liability for failing to prescribe monoclonal antibodies to the decedent. We find that the PREP Act provides petitioners with a complete defense, so we grant the petition.
I. BACKGROUND
On August 7, 2021, 44-year-old Michael McGinnis sought treatment at the emergency department of defendant San Antonio Regional Hospital (the hospital), complaining of cough, fever, body aches, and shortness of breath. Petitioner Dalia M. Nassman is a doctor who treated McGinnis. Petitioner Mountain View Emergency Physicians Medical Group, Inc. (MVEPMG) is a California professional corporation of
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physicians, nurse practitioners, and physician assistants who provide emergency medicine services at the hospital.
At the emergency department, McGinnis tested positive for COVID-19. Nassman examined him and, according to her notes, found him “hemodynamically stable,” his blood oxygen levels were good (he was “satting well on room air”), and he was not
showing any “signs of respiratory distress.” He had “a low-grade fever,” but he was
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“resting comfortably” and appeared “nontoxic.” Nassman discharged McGinnis,
advising him to take over-the-counter medications for his symptoms and to follow up with his primary care physician, and instructing him to return to the emergency department if his symptoms worsened. Although monoclonal antibodies were available as a treatment for COVID-19, Nassman did not prescribe them for McGinnis.
On August 10, 2021, McGinnis had a telemedicine appointment with a physician’s assistant, who decided his symptoms were not severe enough to require emergency treatment. Nevertheless, late that evening, McGinnis returned to the hospital’s emergency department complaining of shortness of breath. He was found to be in moderate respiratory distress and hypoxic, and he was admitted to the telemetry unit of the hospital. He was later transferred to the intensive care unit and intubated, but on August 16, 2021, he died.
1 As one of Nassman’s colleagues explained in his deposition, “toxic” in this context means “extremely sick.”
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In July 2022, McGinnis’s survivors filed this lawsuit against the hospital, Nassman, and others. They filed the operative second amended complaint (complaint) in December 2022. The complaint alleges a single cause of action for general negligence. In March 2023, plaintiffs added MVEPMG to the lawsuit by Doe amendment.
Petitioners’ summary judgment motion, filed in January 2025, argued Nassman’s treatment of McGinnis fell within the immunity protections of (1) the PREP Act, (2) Government Code section 8659, and (3) the Good Samaritan Act (Bus. & Prof. Code, § 2395). The trial court denied the motion. As to the PREP Act, the court found it may create immunity in “‘inaction’ situations, where a physician does not prescribe a specific countermeasure” such as monoclonal antibodies for COVID-19, but “only where the failure to [prescribe] is related to shortages or a choosing of one patient over the other.” It found a triable issue of material fact as to the reason Nassman did not prescribe monoclonal antibodies to McGinnis, and thus whether her reasoning fell within the scope of PREP Act immunity.
Petitioners sought writ relief in this court as to each of their asserted bases for liability. Our order to show cause limited the issue to whether the PREP Act is a complete defense to petitioners’ liability.
II. DISCUSSION
A. Applicable Law ‘“Congress passed the [PREP] Act in 2005 to encourage during times of crisis the ‘development and deployment of medical countermeasures’ (such as diagnostics,
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treatments, and vaccines) by limiting legal liability relating to their administration.’” (Hampton v. California (9th Cir. 2023) 83 F.4th 754, 762.) The PREP Act provides “covered persons” immunity from liability under state and federal law in “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 if a declaration under subsection (b) has been issued with respect to such countermeasure.” (42 U.S.C. § 247d-6d(a)(1).)
There is no dispute that a “declaration under subsection (b)” of the PREP Act has been issued regarding the COVID-19 pandemic and was in effect in August 2021 (PREP
Act declaration), that petitioners are “covered and qualified persons,” or that monoclonal
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antibodies are a “covered countermeasure.” Plaintiffs concede their claim against
petitioners is “related to” Nassman’s “decision not to order monoclonal antibodies.” Thus, the issue here is whether the decision not to order monoclonal antibodies constitutes “administration to or the use by an individual” of that “covered countermeasure” under the PREP Act.
In December 2020, the Department of Health and Human Services (DHSS)
amended its PREP Act declaration—the fourth such amendment— to “make explicit that there can be situations where not administering a covered countermeasure to a particular
2 “On March 17, 2020, the Secretary issued a declaration announcing that COVID-19 ‘constitutes a public health emergency’ and that ‘immunity as prescribed in the PREP Act’ was ‘in effect’ for the ‘manufacture, testing, development, distribution, administration, and use of’ covered countermeasures,” including “‘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.’” (Maney v. Brown (9th Cir. 2024) 91 F.4th 1296, 1298 (Maney).)
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individual can fall within the PREP Act and this Declaration’s liability protections.” (85 Fed. Reg. 79194 (Dec. 9, 2020).) In relevant part, the PREP Act declaration now reads:
“Where there are limited Covered Countermeasures, not administering a Covered Countermeasure to one individual in order to administer it to another individual can constitute ‘relating to . . . the administration to . . . an individual’ under 42 U.S.C. 247d-6d. For example, consider a situation where there is only one dose of a COVID-19 vaccine, and a person in a vulnerable population and a person in a less vulnerable population both request it from a healthcare professional. In that situation, the healthcare professional administers the one dose to the person who is more vulnerable to COVID-19. In that circumstance, the failure to administer the COVID-19 vaccine to the person in a less-vulnerable population ‘relat[es] to . . .
the administration to’ the person in a vulnerable population. The person in the vulnerable population was able to receive the vaccine only because it was not administered to the person in the less-vulnerable population. Prioritization or purposeful allocation of a Covered Countermeasure, particularly if done in accordance with a public health authority’s directive, can fall within the PREP Act and this Declaration’s liability protections.” (85 Fed. Reg. 79197, fn. omitted.)
The fourth amendment also clarified “that the Declaration must be construed in accordance with the [DHHS] Office of the General Counsel (OGC) Advisory Opinions.” (85 Fed. Reg. 79191, 79192.) DHHS Advisory Opinion 21-01, published January 2021, criticized district court opinions that had held that immunity applied only when
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countermeasures were “used,” stating that such a “‘black and white’ view clashes with the plain language of the PREP Act, which extends immunity to anything ‘relating to’ the administration of a covered countermeasure.” The advisory opinion describes the example from the PREP Act declaration, “where there is only one dose of a COVID-19 vaccine, and a person in a vulnerable population and a person in a less vulnerable population both request it.” It goes on to say that “[t]here can potentially be other situations where a conscious decision not to use a covered countermeasure could relate to the administration of the countermeasure. In contrast, the failure to purchase any PPE, if not the outcome of some form of decision-making process may not be sufficient to trigger the PREP Act.”
The trial court, quoting one federal district court case and citing both the amended declaration and another district court case, found that inaction claims “‘only fall under the scope of the PREP Act where: (1) there are limited covered countermeasures; and (2) there was a failure to administer a covered countermeasure to one individual because it was administered to another individual.’” (See Winn v. Cal. Post Acute LLC (C.D. Cal. 2021) 532 F.Supp.3d 892, 899 (Winn) (italics added); Anson v. HCP Prairie Vill. KS OPCO LLC (D. Kan. 2021) 523 F.Supp.3d 1288, 1301 (Anson).) The use of the word “only” in this formulation is a key point of dispute here.
A court must grant summary judgment if there is no triable issue of material fact and the moving party is entitled to judgment in its favor as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A party challenging denial of summary judgment may do so by
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writ petition. (Id., subd. (m)(1).) “‘Where the trial court’s denial of a motion for summary judgment will result in trial on nonactionable claims, a writ of mandate will issue.’” (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1259-1260.) We review a trial court’s decision on summary judgment de novo, determining independently whether the undisputed material facts support summary judgment. (Id. at p. 1260; Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)
B. Analysis This case presents two related issues: whether any triable issue exists under the standard applied by the trial court, and whether that standard correctly states the law.
Because the answer to both is no, we apply the proper standard and likewise find no
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triable issue.
First, it was appropriate for the trial court to look to federal district court rulings as persuasive authority for interpretation of the PREP Act in the absence of binding California authority. (See Gray v. Quicken Loans, Inc. (2021) 61 Cal.App.5th 524, 528 [finding federal district court case “instructive” where the parties cited “no relevant California appellate authority”].) The standard the trial court applied is taken from Winn,
3 At oral argument, plaintiffs’ counsel requested supplemental briefing per Government Code, section 68081. We deny the request. “The parties need only have been given an opportunity to brief the issue decided by the court, and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of [Government Code] section 68081.” (People v. Alice (2007) 41 Cal.4th 668, 679 (italics added.) We here analyze an issue—the scope of PREP Act immunity—that the parties have already briefed at length, and our analysis is grounded in evidence in the record and existing legal authority. That we have not wholly adopted the reasoning of any party does not mean supplemental briefing is required or appropriate.
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supra, 532 F.Supp.3d at p. 899, which states inaction claims “‘only fall under the scope of the PREP Act where: (1) there are limited covered countermeasures; and (2) there was a failure to administer a covered countermeasure to one individual because it was administered to another individual.’” (Italics added).
There is no triable issue of material fact as to the first prong of this standard, whether there was a limited supply of monoclonal antibodies. The evidence conflicts as to whether there was an immediate shortage of them at the hospital on the day McGinnis sought treatment, in the sense of more COVID-19 patients that day than doses available. There is no dispute, however, that Nassman and the other doctors at the hospital did not know from day to day or from week to week when additional supplies would become available. As Kevin Parkes, MVEPMG’s medical director, testified in his deposition:
“We would get monoclonal antibody deliveries when they were available. Sometimes we
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would go a week and not have any. Sometimes we would have some for a few days.”
That constitutes a “limited” supply of the antibodies—not in the trivial sense that any resource is finite, but in the sense that supply was constrained and could fall short of
4 The trial court rejected plaintiffs’ argument that it should not consider Parkes’s testimony because it was not cited in the separate statement of material facts in support of the motion for summary judgment. (See Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1211.) So do we. It is proper for us to consider “all of the evidence adduced on the motion (except evidence that the trial court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1103.) We note also that an excerpt of Parkes’s deposition transcript was attached to a declaration submitted in support of the summary judgment motion, which is why it is in our record in this proceeding, and that transcript was quoted in the memorandum in support of the motion.
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patient need, because supply deliveries were unpredictable and patient need was subject to sudden surges.
As to the second prong of the standard, Parkes explained that in August 2021, the hospital was “pretty overwhelmed with patients with the second surge of COVID,” and the hospital was full of “super sick patients” and “people dying.” Thus, doctors were “trying to figure out which patients would be . . . not just qualified but would actually . . . benefit the most from the monoclonals.” They had to decide “if you had 20 doses on Monday,” do you “give them to the first 20 patients or do you give them to the five worst patients Monday through Friday[?]” These were “tough decisions to make back then.” The only reasonable inference is that the antibodies Nassman did not prescribe were reserved for another patient, though unknown, who would benefit from them more, given that McGinnis appeared at the time to be doing well without them.
Thus, even under the standard in Winn, Anson, and similar cases, there are no triable issues of material fact. But that standard was incorrect.
The cases the trial court relied on each involve facts that differ from the facts here.
Plaintiffs here allege a direct connection between failure to administer monoclonal antibodies and McGinnis’s death. In Winn, too, a decedent’s relatives sued a nursing care facility after the decedent died from COVID-19 complications, and the defendant claimed immunity under the PREP Act. (Winn, supra, 532 F.Supp.3d at pp. 895-896.) But the Winn court found the PREP Act did not apply because there were no allegations the decedent died because of purposeful allocation of care or protective equipment to other
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individuals. (Id. at p. 899.) In Anson, too, the plaintiffs alleged many negligent failures to act, but they did not allege injury from “non-administration or non-use” of limited covered countermeasures administered “elsewhere.” (Anson, supra, 523 F.Supp.3d at p. 1301; see also id. at p. 1299 [“[T]his case’s motion requires the court to determine the scope of PREP Act’s remedy—not its grant of immunity”].)
Because the issue was not squarely presented, Winn and Anson did not examine closely the appropriate standard for PREP Act inaction claims. Winn quoted Stone v. Long Beach Healthcare Center, LLC, (C.D. Cal. Mar. 26, 2021, No. CV 21-326- JFW(PVCx)) 2021 U.S. Dist. Lexis 58410, which in turn cited Anson. Anson briefly discussed both the December 2020 amendment and the January 2021 advisory opinion and recited that “an ‘inaction claim’ is not necessarily beyond the scope of the PREP Act.” (Anson, supra, 523 F.Supp.3d at p. 1299.) Nevertheless, Anson also repeated reasoning from earlier district court cases that the advisory opinion had rejected for excluding inaction cases. (Anson, at p. 1300, quoting Eaton v. Big Blue Healthcare, Inc. (D. Kan. 2020) 480 F.Supp.3d 1184, 1194 (Eaton)); see Eaton, at p. 1195 [“There is simply no room to read [the PREP Act] as equally applicable to the non-administration or non-use of covered countermeasures”] (italics added).) And none of these cases grappled with the principle that “the use of an illustrative example does not limit the scope of immunity to the circumstances of that example.” (Maney, supra, 91 F.4th at p. 1302.) Quite the contrary. (See Anson, at p. 1299 [illustration “reinforces the need for these two conditions for ‘inaction claims’ to fall within the statute’s reach”].)
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In their articulation of the standard for inaction claims, these cases converted an example into a limitation. The PREP Act declaration does not limit immunity to the scenario where one person received the covered countermeasure only because it was denied to another person. Rather, it gives that scenario as one example of a more general category of scenarios involving “[p]rioritization or purposeful allocation of a Covered Countermeasure.” (85 Fed. Reg. 79197; see ibid. [“For example, consider a situation where there is only one dose . . .”] (italics added).) DHHS Advisory Opinion 21-01 makes the same point: “There can potentially be other situations where a conscious decision not to use a covered countermeasure could relate to the administration of the countermeasure.” In contrast, a failure that is “not the outcome of some form of decision-making process may not be sufficient to trigger the PREP Act.”
The proper standard, therefore, is that inaction claims fall within the scope of the PREP Act if the alleged inaction was the product of a conscious decision to prioritize or purposefully allocate a covered countermeasure, as distinguished from inaction that results from no deliberate decision-making at all. This view accords with the Secretary’s purpose of clarifying that decisions to prioritize or purposefully allocate a “scarce covered countermeasure can fall within the PREP Act’s liability protection.” (Maney, supra, 91 F.4th at p. 1299.)
Applying that standard, no triable issue of material fact exists here. Nassman’s notes of her examination of McGinnis are evidence that her conclusions regarding course of treatment—including the implicit decision not to administer monoclonal antibodies—
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were conscious decisions based on her evaluation of his symptoms. Parkes’s testimony underscores that, in August 2021, Nassman and the other doctors at the hospital were
purposefully allocating monoclonal antibodies as best they could, given an unpredictable
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supply that did not reliably meet surging demand. This sort of purposeful allocation is
squarely within the scope of PREP Act immunity as articulated in the PREP Act declaration and DHHS Advisory Opinion 21-01. There is no non-speculative basis to conclude that Nassman’s alleged inaction—not prescribing McGinnis monoclonal antibodies on August 7, 2021—was, for example, the product of a failure to consider whether administering them would be appropriate, or another sort of non-action that is not the product of a conscious decision-making process and therefore might not trigger the PREP Act.
We conclude that petitioners demonstrated there are no triable issues of material fact regarding whether they are entitled to a complete defense to plaintiffs’ claim against them. The trial court should have granted their motion for summary judgment on that basis.
5 At oral argument in this appeal, plaintiffs’ counsel emphasized the record evidence showing that supplies had not run short in the months before August 2021 and that there was ample supply on the day McGinnis sought treatment. But this shows that the hospital was carefully tracking its monoclonal antibody supply and that the hospital’s conscious management of that supply had been effective. Given a period of limited medication and unpredictable patient surges, it would be ill-advised for the law to grant immunity to hospitals whose laxity lets their supply reach the brink of exhaustion but not those that manage it more consciously. This point helps explain why we find that the supply here, though managed to avoid depletion, was limited in the sense that is relevant to the issue. The evidence of regulated supply in the period accordingly confirms that Nassman’s decision not to treat McGinnis with the available doses was the product of conscious decision making.
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III. DISPOSITION
The petition for writ of mandate is granted. Let a writ of mandate issue directing the respondent superior court to (1) vacate its order denying petitioners’ motion for summary judgment and (2) enter a new order granting the motion.
CERTIFIED FOR PUBLICATION
RAPHAEL
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J.
We concur:
CODRINGTON
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Acting P. J.
FIELDS
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J.