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Parker v St. Lawrence County Pub. Health Dept.

Supreme Court of New York, Appellate Division, Third Department

November 21, 2012, Decided; November 21, 2012, Entered

514446

Opinion

 [*141]  [**260]  Peters, P.J.

The ] federal Public Readiness and Emergency Preparedness Act (hereinafter PREP Act) (see Pub L 109-148, 119 US Stat 2680 [109th Cong, 1st Sess, Jan. 7, 2005]) authorizes the Secretary of Health and Human Services to take such action as necessary to respond to a public health emergency (see 42 USC § 247d [a] , ). In 2009, in response to an outbreak of the H1N1 influenza virus, the Secretary determined that a public health emergency existed  [***2] and issued declarations recommending the administration of the influenza antiviral vaccination [****2]  Peramivir (see 74 Fed Reg 50968 [2009]; [**261]  74 Fed Reg 51153 [2009]). In response, then Governor Paterson issued an executive order declaring a disaster emergency with respect to the influenza outbreak, which authorized state and local health departments to establish immunization programs in order to facilitate the timely distribution and administration of the 2009 H1N1 influenza vaccine (see Executive Order [Paterson] No. 29 [9 NYCRR 7.29]).

On December 3, 2009, pursuant to the Secretary's declarations, defendant St. Lawrence County Public Health Department (hereinafter defendant) held a vaccination clinic at defendant Lisbon Central School in the Town of Lisbon, St. Lawrence County. Although plaintiff did not execute a parental consent form authorizing the inoculation of her daughter, then a kindergartner, a nurse employed by defendant nonetheless administered a vaccination to the child. Accordingly, plaintiff commenced this action alleging that the administration of the  [*142]  inoculation without consent constituted negligence and resulted in a battery upon her daughter.1 Defendant moved to dismiss  [***3] the complaint against it for lack of subject matter jurisdiction on the ground of federal preemption. Supreme Court, finding that the protections of the PREP Act do not extend to situations in which a governmental entity administers a drug without consent, denied the motion. This appeal by defendant ensued.2 

The sole issue presented on appeal is whether the PREP Act preempts plaintiff's state law claims for negligence and battery. We hold that is does.

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102 A.D.3d 140 *; 954 N.Y.S.2d 259 **; 2012 N.Y. App. Div. LEXIS 7893 ***; 2012 NY Slip Op 7934 ****

 [****1]  Jennifer J. Parker, as Parent and Guardian of Madison J. Parker, an Infant, Respondent, v St. Lawrence County Public Health Department, Appellant, et al., Defendant.

Prior History: Appeal from an order of the Supreme Court, St. Lawrence County (David R. Demarest, J.), entered July 6, 2011. The order, among other things, denied a motion by defendant St. Lawrence County Public Health Department to dismiss the complaint against it.

CORE TERMS

countermeasure, declaration, vaccination, preemption, emergency, public health, administered, influenza, preempted, immunity

Public Health & Welfare Law, Social Services, Emergency Services, Constitutional Law, Supremacy Clause, Federal Preemption, Torts, Procedural Matters, Preemption, General Overview, Express Preemption, Implied Preemption, Public Entity Liability, Immunities, Evidence, Presumptions, Particular Presumptions, Regularity