September 11, 2026 by matray

The 2nd U.S. Circuit Court of Appeals ruled that the PREP Act shielded a physician from malpractice claims arising from his prescription of prednisone to treat a COVID-19 patient who later died from complications of a perforated ulcer. The court found the drug was a covered countermeasure with a sufficient causal connection to the patient’s death to trigger federal immunity. It also upheld dismissal of a Connecticut Unfair Trade Practices Act claim, finding the allegations amounted to medical malpractice rather than an actionable business or entrepreneurial practice.

Case: Kory v. Waters, No. 25-76(L), 08/26/2026, published.

Facts: Edward James Waters contracted COVID-19 in November 2021. He sought treatment from Dr. Pierre Kory in December 2021.

Kory allegedly held himself out as a counter-culture expert regarding COVID-19 treatment and had a tele-health practice for treating patients remotely.

At around the same time that he contracted COVID-19, Waters experienced a flare-up of gout and was treated with a drug called prednisone, which is a corticosteroid. Kory was aware that Waters had recently taken prednisone. Nevertheless, Kory prescribed Waters additional prednisone to treat his COVID-19 infection, along with ivermectin, spironolactone and dutasteride.

Despite Kory’s treatments, Waters’ condition worsened and he was admitted to the hospital a week later. Waters was hospitalized for four days and was treated with additional corticosteroids.

He was also given a proton pump inhibitor, which is used to counteract the risk of developing peptic ulcer disease through a protracted course of high dose corticosteroids.

After he was released from the hospital, Waters’ condition improved. Kory then prescribed another round of prednisone, which Waters was instructed to take after the initial prescription from the hospital ran its course.

Kory did not personally review the details of Waters’ hospitalization and treatment before issuing the prescription. He also did not prescribe a treatment, such as a proton pump inhibitor, to mitigate the harmful side effects of the prednisone.

In late December, Waters returned to the hospital with abdominal pain and abdominal distension. Doctors suspected a perforated ulcer and confirmed their suspicions through an emergency exploratory laparotomy.

Waters later died as a result of multiple organ failure.

Procedural history: The administrator of Waters’ estate sued Kory for negligence, a lack of informed consent in Waters’ treatment, and violations of the Connecticut Unfair Trade Practices Act.

The estate filed suit in a Connecticut state court, and Kory removed the case to the District of Connecticut based on diversity. Kory then moved to dismiss the claims based on the immunity provided in the Public Readiness and Emergency Preparedness Act as well as on a theory that the complaint failed to state a viable CUTPA claim.

The trial court judge dismissed the CUTPA claim but concluded that PREP Act immunity did not apply and denied the motion to dismiss as to the remaining claims.

Waters appealed the dismissal of the CUPTA claim.

Analysis: The U.S. 2nd Circuit Court of Appeals ruled that the denial of a motion to dismiss on PREP Act immunity grounds is an immediately appealable collateral order.

The court noted the PREP Act bestows complete immunity from suit, Kory’s PREP Act immunity defense is completely separate from the merits of the estate’s claims, and the entitlement it bestows is “effectively lost” if the defendant is made to face the burdens of litigation making the denial of a motion to dismiss “effectively unreviewable on appeal from a final judgment.”

The court said the dismissal of the estate’s CUTPA claim is also reviewable since it is distinct from the estate’s remaining claims, the trial judge made a substantive determination that the estate’s allegations are not cognizable under CUTPA, and reviewing the claim along with the collateral appeal of the PREP Act immunity issue allows for the entirety of the judge’s order to be reviewed at once.

The PREP Act provides broad immunity from liability for a “covered person” from 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, the court said.

A “covered person” is “a person or entity that is . . . a qualified person who prescribed, administered, or dispensed [a covered] countermeasure,” the court said. A “qualified person” includes “a licensed health professional or other individual who is authorized to prescribe, administer, or dispense [covered] countermeasures under the law of the state in which the countermeasure was prescribed, administered, or dispensed.”

A “covered countermeasure” is any antiviral, drug, biologic, diagnostic, device, or vaccine used to treat, diagnose, cure, prevent, or mitigate COVID-19.

The court said Kory was a covered person because he is a licensed health professional authorized to prescribe, administer, or dispense covered countermeasures in Connecticut since he held a current license in good standing in New York and Wisconsin.

Kory also used a covered countermeasure to treat Waters, the court said, as the estate conceded prednisone is a covered countermeasure under the PREP Act.

The court said the covered countermeasure had a sufficient causal relationship with Waters’ death to trigger immunity as well, as the estate alleged Kory “prescribed an unreasonably high dose of prednisone and did so without proper consideration for gastrointestinal protection.”

The PREP Act does not require that a covered countermeasure be the sole cause of an alleged loss, the court said, as nothing in the act’s text indicates that Congress contemplated such a narrow causal tie between the use or administration of the covered countermeasure and the loss alleged.

Instead, the court said, the PREP Act’s text “makes clear that a wide range of claims based on the use or administration of covered countermeasures are barred.” The court said there just needs to be “some factual causal connection to the ultimate loss.”

Here, as alleged, the prednisone directly and foreseeably caused the ulcers that perforated and led to Waters’ death, the court said. Thus, the prednisone was allegedly both a factual and proximate cause of Waters’ death.

“We have no trouble concluding that such allegations more than trigger the PREP Act’s immunity provision, and therefore, Kory is entitled to immunity,” the court said.

The court further said the judge properly dismissed the estate’s CUTPA claim on the merits.

CUTPA provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce,” the court said.

“Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation,” the court explained. “[T]he touchstone for a legally sufficient CUTPA claim against a healthcare provider is an allegation that an entrepreneurial or business aspect of the provision of services aside from medical competence is implicated, aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel.”

Here, the CUTPA claim was premised entirely on Kory’s medical treatment of Waters, the court said. The sole allegations relating to the entrepreneurial or business aspect of Kory’s medical practice explain that Kory was overly focused on growing his brand and business, and that “he could not devote adequate time to providing patients such as the plaintiff with proper medical care.”

The court said such an allegation was “nothing like the cases in which Connecticut courts have recognized viable CUTPA claims against medical professionals.” Where claims are premised on the notion that a component of the defendant’s business or entrepreneurial efforts weighed on the care that defendant was able to provide to the plaintiff, Connecticut courts have generally concluded that such claims are barred as recast medical malpractice claims, the federal appellate court said. The court therefore said the dismissal of the estate’s CUPTA claim was appropriate.

Disposition: Reversed in part and remanded. To read the court’s decision, click here.