Can You Sue for a COVID Treatment Error in California? The PREP Act and the Nassman Decision

What Happened in the Nassman Case

On August 7, 2021 — during the Delta surge that overwhelmed hospitals across Southern California — a 44-year-old man named Michael McGinnis went to the emergency department of San Antonio Regional Hospital. He had a cough, fever, body aches and shortness of breath, and he tested positive for COVID-19.

The emergency physician who treated him, Dr. Dalia Nassman, documented that he was hemodynamically stable, that his blood oxygen levels were good on room air, and that he showed no signs of respiratory distress. He had a low-grade fever but was resting comfortably. She discharged him with instructions to take over-the-counter medication, follow up with his primary care physician, and return if his symptoms worsened.

Monoclonal antibodies were available at the hospital as a COVID-19 treatment. Dr. Nassman did not prescribe them.

Three days later, after a telemedicine visit concluded his symptoms were not severe enough for emergency care, McGinnis returned to the emergency department in moderate respiratory distress and hypoxic. He was admitted, later transferred to intensive care and intubated, and on August 16, 2021, he died.

His survivors sued. Their operative complaint pleaded a single cause of action for general negligence against the hospital, Dr. Nassman, and her employer, Mountain View Emergency Physicians Medical Group. The core allegation was a direct connection between the failure to administer monoclonal antibodies and McGinnis’s death.

The defense moved for summary judgment on three immunity theories, including the federal Public Readiness and Emergency Preparedness Act. The trial court denied the motion, finding a triable issue of fact about why Dr. Nassman did not prescribe the antibodies. The defendants sought writ relief. On August 18, 2026, the Fourth District Court of Appeal, Division Two, granted the writ in a published opinion and directed the trial court to enter summary judgment for the doctor and her medical group.

The PREP Act in Plain English

Congress passed the PREP Act in 2005 to encourage the development and deployment of medical countermeasures during a crisis by limiting legal liability relating to their administration. In practice, it works like this:

• The U.S. Secretary of Health and Human Services issues a declaration covering a specific public health threat and specific countermeasures.
• While that declaration is in effect, covered persons (which can include doctors, medical groups and hospitals) receive immunity from state and federal liability.
• The immunity reaches 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.

In the Nassman case, nobody disputed the threshold elements. A COVID-19 declaration was in effect in August 2021. The doctor and her medical group were covered persons. Monoclonal antibodies were a covered countermeasure. The plaintiffs even conceded their claim was “related to” the decision not to order monoclonal antibodies.

So the entire case came down to a single question of statutory interpretation: can a decision not to give a treatment count as “administration to or the use by an individual” of that treatment?

Why “not treating” can be covered at all

In December 2020, HHS amended its PREP Act declaration for the fourth time to make explicit that there can be situations where not administering a covered countermeasure to a particular individual falls within the liability protections. The declaration gives a now-famous example: if there is only one dose of a vaccine and two people request it, giving it to the more vulnerable person means the failure to give it to the less vulnerable person “relates to” the administration. The declaration then adds the key sentence:

“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.”

A January 2021 HHS Office of the General Counsel advisory opinion went further, criticizing a “black and white” view that immunity applies only when countermeasures are actually used. It noted there “can potentially be other situations where a conscious decision not to use a covered countermeasure could relate to the administration of the countermeasure,” while contrasting a failure that is “not the outcome of some form of decision-making process.”

The Old Standard — and Why the Court Rejected It

Before Nassman, California trial courts had no binding state appellate authority on this issue, so they looked to federal district court decisions. The most frequently cited formulation came from Winn v. Cal. Post Acute LLC (C.D. Cal. 2021) and Anson v. HCP Prairie Village KS OPCO LLC (D. Kan. 2021). Under that formulation, inaction claims fall within the PREP Act only 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.

The trial court in the McGinnis case applied exactly that test and found a triable issue about Dr. Nassman’s reasoning.

The Court of Appeal disagreed on two independent levels.

First: even under the old test, there was no triable issue

On the “limited supply” prong, the court found the evidence undisputed in a crucial respect. The medical group’s medical director testified that the hospital received monoclonal antibody deliveries only when they were available — sometimes going a week without any, sometimes having some for a few days. Doctors did not know day to day or week to week when more would arrive. That, the court held, was a “limited” supply “not in the trivial sense that any resource is finite, but in the sense that supply was constrained and could fall short of patient need.”

On the second prong, the same testimony described an emergency department “pretty overwhelmed with patients with the second surge of COVID,” full of “super sick patients” and “people dying,” with physicians trying to determine which patients would benefit most — whether to give 20 Monday doses to the first 20 patients or to the five worst patients across the week. The court concluded the only reasonable inference was that the doses not given to McGinnis were reserved for another patient who would benefit more.

Second: the old test was wrong

The court then went further, and this is the part that will be cited for years. It held that Winn, Anson and similar cases “converted an example into a limitation.” The federal declaration does not confine immunity to the one-dose, two-patient scenario; it offers that scenario as one example of a broader category involving prioritization or purposeful allocation. The court noted those district court cases also failed to grapple with the principle, stated by the Ninth Circuit in Maney v. Brown (9th Cir. 2024), that “the use of an illustrative example does not limit the scope of immunity to the circumstances of that example.”

The New California Standard for Inaction Claims

Here is the holding, in the court’s own framing:

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.

Applying it, the court found Dr. Nassman’s examination notes were evidence that her treatment conclusions — including the implicit decision not to administer monoclonal antibodies — were conscious decisions based on her evaluation of the patient’s symptoms. Combined with the medical director’s testimony about allocating an unpredictable supply against surging demand, that placed the conduct squarely inside PREP Act immunity.

The court also addressed a sharp argument plaintiffs made at oral argument: the records showed supplies had not run short in the preceding months and that ample supply existed on the day in question. The court turned that around, reasoning that it showed the hospital was carefully tracking and consciously managing its supply, and adding that “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.”

Issue	Trial court / Winn line	Nassman (published 2026)
Does inaction ever trigger immunity?	Yes, but narrowly	Yes, on a broader category
Must supply be short that day?	Effectively yes	No — constrained, unpredictable supply suffices
Must a specific other patient be identified?	Yes	No
Core question	Was it given to someone else?	Was it a conscious allocation decision?
What falls outside?	Most inaction	Inaction with no deliberate decision-making

What This Means If Your Family Was Harmed

Let us be direct, because families deserve directness. For a narrow but painful category of cases — claims that a California provider should have given a scarce, declaration-covered COVID treatment and did not — Nassman makes the path considerably harder. If the provider can show the decision flowed from a clinical evaluation and an allocation process, summary judgment is now a realistic defense outcome rather than a long shot.

That is a genuine loss for the McGinnis family and for families in similar positions. It is also not the end of the analysis for most people reading this page.

Claims That May Still Move Forward

Nassman decided one defense, on one record, on one theory of liability. The opinion itself flags the boundary of its own rule. Areas that remain meaningfully different include:

• Inaction with no decision behind it. The court expressly distinguished non-action that is “the product of a failure to consider whether administering [the countermeasure] would be appropriate.” Where the record shows nobody evaluated anything, the analysis changes.
• Care unrelated to a covered countermeasure. Immunity attaches to claims relating to administration or use of a covered countermeasure. Allegations about failure to monitor, delayed admission, discharge against clinical indicators, staffing, falls, pressure injuries, or infection-control practices may not touch a covered countermeasure at all.
• Periods outside a declaration. The declaration’s coverage and timing matter. A claim arising at a different time, or involving a product outside the declaration, presents a different threshold question.
• Elder and dependent adult care. California nursing home and residential facility claims often rest on statutory theories and factual allegations distinct from countermeasure administration.
• Ordinary injury claims that have nothing to do with COVID care. Nassman has no bearing on a Los Angeles car accident claim or a slip-and-fall injury, even if the incident happened during the pandemic years.

Whether any of these apply depends entirely on records: chart notes, discharge instructions, pharmacy and supply logs, staffing records, internal allocation protocols, and deposition testimony from the clinicians and medical directors involved. In Nassman, the medical director’s deposition was decisive. That cuts both ways.

Why This Matters in Los Angeles

Nassman arose from San Bernardino County and was decided by the Fourth District, but its practical reach extends across Southern California. It is a published Court of Appeal decision, which means it is citable authority, and under long-settled California practice published appellate decisions bind superior courts statewide where no conflicting appellate decision exists. Defense counsel in Los Angeles Superior Court — at Stanley Mosk, at Spring Street, at the Santa Monica, Van Nuys, Pomona and Torrance courthouses — began citing it almost immediately.

The timing context matters too. August 2021 was the Delta surge, when LA County emergency departments from Boyle Heights to the San Fernando Valley to the South Bay were absorbing patient volumes well beyond normal capacity while monoclonal antibody distribution ran through constrained federal and state allocation channels. Many Angeleno families lost someone in exactly that window. If you are one of them and you have wondered for years whether something should have been done differently, you are not imagining the problem — and you are entitled to have the records reviewed by someone who will tell you honestly what the law now permits.

The honest answer in some cases will be that Nassman closes the door. In others, the allegations never implicated a covered countermeasure in the first place, and the defense is simply inapplicable. Knowing which category you are in requires looking at the chart, not at a headline.

Practical Next Steps

1. Gather the records now. Emergency department notes, discharge paperwork, admission records, medication administration records and billing statements. Request them in writing.
2. Write down the timeline while you remember it. Dates, times, what was said at discharge, who you spoke with, what symptoms prompted the return visit.
3. Do not assume the deadline is far away. California imposes short limitation periods on medical negligence and wrongful death claims, and additional notice requirements can apply when a public entity or public hospital district is involved. These deadlines can extinguish an otherwise strong case.
4. Separate the theories. A claim about failure to give a specific covered treatment is legally different from a claim about failure to monitor, misdiagnosis of a non-COVID condition, or negligent discharge. Those distinctions now carry real weight.
5. Get a case-specific review. General articles — including this one — cannot tell you whether immunity applies to your facts. Contact our team for a confidential, no-obligation evaluation.

Frequently Asked Questions

Sources Consulted

• Nassman v. Superior Court (Aug. 18, 2026, E086361) Cal. Ct. App., 4th Dist., Div. Two, certified for publication — full opinion text reviewed. courts.ca.gov
• Public Readiness and Emergency Preparedness Act, 42 U.S.C. § 247d-6d
• Fourth Amendment to the HHS PREP Act Declaration, 85 Fed. Reg. 79194 (Dec. 9, 2020)
• HHS Office of the General Counsel Advisory Opinion 21-01 (January 2021)
• Maney v. Brown (9th Cir. 2024) 91 F.4th 1296; Hampton v. California (9th Cir. 2023) 83 F.4th 754
• Winn v. Cal. Post Acute LLC (C.D. Cal. 2021) 532 F.Supp.3d 892; Anson v. HCP Prairie Vill. KS OPCO LLC (D. Kan. 2021) 523 F.Supp.3d 1288