2026 OK 54
Okla.2026Background
- Blake Burgess, a 21-year-old COVID-positive patient, was treated and discharged from Integris’s emergency room on September 14, 2020, then died days later of cardiac arrest from pulmonary embolism with COVID as an underlying cause. 1
- Parents sued Providers for wrongful death and medical negligence, alleging they failed to diagnose and treat Blake’s pulmonary embolism during the emergency-room visit. 2
- At trial, the court denied Providers’ immunity requests, gave a directed verdict for Parents on intervening/supervening causation, and the jury awarded $10 million, later reduced for Blake’s comparative negligence. 3
- The trial court struck Providers’ PREP Act immunity defense on summary judgment, finding no covered countermeasure supported it, but left Oklahoma COVID-19 Act immunity for trial. 4
- The emergency department’s COVID protocols barred Blake’s mother from entering, forced her to leave a note with the registration clerk, and the note never reached Dr. Langerman. 5
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Oklahoma COVID-19 Act immunity 6 | Parents said Blake was not sufficiently “impacted” by COVID protocols. | Providers said Blake was treated during COVID response and immunity barred ordinary negligence. | Providers were immune from ordinary negligence; impact was satisfied as a matter of law. 7 |
| PREP Act complete/defensive preemption 8 | Parents’ ordinary negligence claims were not federally preempted. | Providers claimed the PREP Act completely and defensively preempted the suit. | No complete preemption, and state court could decide immunity as an affirmative defense. 9 |
| PREP Act immunity 10 | Parents said their claim was failure to diagnose PE, not injury from a covered countermeasure. | Providers said EKG/x-ray diagnostics were covered countermeasures and their use caused the loss. | PREP Act immunity did not apply because the loss lacked the required causal relationship. 11 |
| Administrative exhaustion 12 | Parents had no PREP Act administrative remedy to exhaust. | Parents had to pursue the compensation fund before suit. | No exhaustion required because the claims fell outside PREP Act coverage. 13 |
| Intervening/supervening cause 14 | Blake’s later refusal of transport and failure to follow up did not break causation. | Blake’s own conduct and later events were superseding causes. | No supervening cause instruction was required; directed verdict for Parents was proper. 15 |
Key Cases Cited
- Austbo v. Greenbriar, 588 P.3d 879 (Okla. 2025) (interprets the Oklahoma COVID-19 Act’s “impact” element 16)
- Smith v. Deaconess Hosp., 161 P.3d 314 (Okla. 2007) (immunity requires compliance with all statutory conditions 17)
- Beneficial Nat'l Bank v. Anderson, 539 U.S. 1 (U.S. 2003) (complete preemption requires an exclusive federal cause of action 18)
- Franklin v. OU Med., Inc., 582 P.3d 1127 (Okla. 2025) (PREP Act immunity applies when injury is caused by a covered countermeasure 19)
- Mills v. Hartford Healthcare Corp., 298 A.3d 605 (Conn. 2023) (failure-to-diagnose claims may fall outside PREP Act immunity absent causal relation to a countermeasure 20)