Causation and “Impact” as Gatekeepers to COVID-19 Medical Immunity:
A Commentary on Larry Austbo v. Greenbriar Nursing Home No. Two, Inc., 2025 OK 85

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I. Introduction

In Larry Austbo, Surviving Spouse of Marilyn Darlene Austbo v. Greenbriar Nursing Home Number Two, Inc., et al., 2025 OK 85, the Oklahoma Supreme Court issued the state’s first detailed construction of two critical COVID-era immunity regimes:

• The federal Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. § 247d‑6d;
• Oklahoma’s COVID-19 Public Health Emergency Limited Liability Act (the “COVID‑19 Act”), 63 O.S. § 6406.

The case arises from the death of Marilyn D. Austbo, an elderly woman with COVID‑19 and multiple comorbidities who was treated at Greenbriar, a skilled nursing facility, under the care of its attending physician, Dr. Tom Snyder. Her surviving spouse sued for negligent treatment and wrongful death, alleging, among other things, failures in nutrition, hydration, and wound prevention/management.

The defendants moved for summary judgment, invoking immunity under both the PREP Act and the Oklahoma COVID‑19 Act. The district court adopted an expansive view, holding that because the decedent was a COVID patient and her harms were “incident” to that context, the Acts conferred immunity. The Supreme Court reversed.

This opinion is significant because it establishes Oklahoma’s governing framework for when COVID‑19–related statutory immunity applies at the summary judgment stage. The Court:

• Insists on evidence of a causal relationship between a PREP Act “covered countermeasure” and the alleged injury;
• Construes 63 O.S. § 6406(C)(1) to require proof that the patient was actually “impacted” by system-wide decisions, activities, staffing, or capacity constraints arising from the COVID‑19 public health emergency, beyond the mere fact of receiving COVID‑related care;
• Holds that unresolved fact questions about gross negligence under § 6406(C)(2) bar summary judgment on state immunity.

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II. Factual and Procedural Background

A. Medical Course of Events

On December 16, 2020, Marilyn Austbo was admitted to Integris Bass Baptist Health Center in Enid with COVID‑19 and Alzheimer’s dementia, along with a serious history of pneumonia, pulmonary fibrosis, hypertension, osteoarthritis, depressive disorders, and past surgeries (hip fracture repair, pacemaker).

On December 18, 2020, she was discharged to Greenbriar Skilled Nursing for ongoing treatment and rehabilitation. Her primary admitting diagnosis was “coronavirus unspecified.” During her 18‑day stay:

• Dr. Snyder managed her care, ordering:
  • Respiratory medications including budesonide and ipratropium–albuterol solution;
  • Transfer back to Integris Bass for bamlanivimab (BAM), a monoclonal antibody infusion;
  • Blood tests, skin assessments, and physical and occupational therapy.
• Her condition did not improve, either before or after BAM therapy. She developed: hypoxemic respiratory failure, worsening mental status, decreased oral intake, renal failure, and hypernatremia (elevated sodium) tied to poor fluid intake, per plaintiff’s expert Dr. John Clark.
• Greenbriar nurses testified she developed pressure injuries (bedsores) before discharge (the severity is disputed), and it is unclear whether her family was adequately informed.

By late December, Dr. Snyder documented that her options were extremely limited given her advanced dementia and serious illness. He and Dr. Clark agree that hospice would have been the appropriate recommendation as her condition declined.

On January 5, 2021, she was discharged from Greenbriar. No home health or hospice services were arranged, in part because the family was uncomfortable with hospice at that time. The next day she returned to Integris Bass’s ICU with multiple pressure wounds (at least one Stage III), requiring oxygen, IV fluids, and wound care. After mild improvement, she was transferred to a step-down unit; her family declined a feeding tube due to aspiration risk and opted for comfort care. She was discharged home under hospice (Circle of Life) and died there on January 23, 2021.

B. Litigation History

Mr. Austbo sued Greenbriar, Dr. Snyder’s professional entities, and Dr. Snyder himself, alleging negligence and wrongful death, including failures to ensure adequate hydration, nutrition, mobility, wound prevention, and appropriate discharge planning. Defendants responded that:

• The PREP Act immunized them because they were “covered persons” who administered “covered countermeasures” (PPE, thermometers, respiratory medications, and BAM) to a COVID patient;
• Oklahoma’s COVID‑19 Act independently shielded them because all actions occurred in the course of providing COVID‑19 health care services during the declared public health emergency.

Procedurally, two key events occurred:

1. Expert evidence filtering: Plaintiff initially submitted two unsworn “letters” from Dr. Clark. The trial court properly struck them, but allowed a supplemental response. Plaintiff then filed a sworn affidavit from Dr. Clark, which defendants never moved to strike or challenge under Daubert. The Supreme Court treats that affidavit as proper summary judgment evidence, leaving admissibility at trial to the district court’s gatekeeping role.
2. Summary judgment ruling: The district court granted summary judgment, concluding that both the PREP Act and the COVID‑19 Act immunized defendants:

   “In my opinion, based on the undisputed facts set forth, all of the issues that are incident to being in a skilled‑nursing center or a hospital setting, if they are proximately caused by coming in as a Covid patient, then these Acts should grant immunity to the medical providers.”

Plaintiff appealed. Given the novelty of the statutory issues and absence of Oklahoma precedent, the Supreme Court retained the appeal.

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III. Summary of the Supreme Court’s Holding

Reviewing de novo, the Court reversed the grant of summary judgment and remanded. Its core holdings are:

1. PREP Act immunity not established on this record:
   • Even assuming (without deciding) that defendants are “covered persons” and used “covered countermeasures,” they failed to produce evidence that the alleged injuries (skin breakdowns, dehydration, malnutrition, death) had the required causal relationship to the administration or use of any covered countermeasure, as required by 42 U.S.C. § 247d‑6d(a)(2)(B).
   • Argument that respiratory medications might cause weakness leading to poor intake was just that—argument, not supported by affidavits, expert testimony, or other proof.
2. COVID‑19 Act immunity also not established:
   • First criterion (§ 6406(C)(1), “COVID‑19 health care services”): The Court held the care at issue did occur “in the course of” providing COVID‑19 health care services—Austbo was admitted and treated for COVID‑19 and its complications throughout her stay.
   • Second, distinct criterion (§ 6406(C)(1), “impact”): The statute further requires that the patient was “impacted by the decisions, activities or staffing of, or the availability or capacity of space or equipment” of the provider “in response to or as a result of the COVID‑19 public health emergency.” The Court finds:
     • This “impact” requirement is separate from merely receiving COVID‑19 care;
   • Gross negligence carve-out (§ 6406(C)(2)): The Act withholds immunity where the act or omission results from “gross negligence or willful or wanton misconduct.” Dr. Clark’s affidavit, unchallenged for summary judgment purposes, creates a genuine fact issue on gross negligence. That alone precludes summary judgment even if the “impact” element were otherwise met.
3. Procedural authority:
   • The district court properly struck unsworn letters; Oklahoma law requires sworn affidavits for summary judgment proof (12 O.S. §§ 2056, 422).
   • Dr. Clark’s sworn affidavit is competent evidence for summary judgment purposes, and its weight and admissibility at trial remain for the district court to determine.

In short, the Court does not hold that the defendants will ultimately be liable, nor that they can never prove immunity. It holds only that, on the existing record, they have not carried their summary judgment burden.

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IV. Detailed Analysis

A. Standards of Review and Summary Judgment Framework

The Court reiterates the core principles governing summary judgment in Oklahoma:

• Summary judgment is proper only where “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” 12 O.S. § 2056; Myers v. Lashley, 2002 OK 14, ¶ 18.
• Review is de novo: the Supreme Court exercises “plenary, independent, and non‑deferential” review of the legal issues and examines whether any genuine issue of material fact exists. Martin v. Aramark Servs., Inc., 2004 OK 38, ¶ 4.
• “Material” facts are those that affect the outcome under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
• A factual dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non‑moving party. Anderson, 477 U.S. at 248; Wittenberg v. Fidelity Bank, 1992 OK 165, ¶ 2.
• All inferences from the evidentiary materials must be drawn in favor of the nonmovant. Tiger v. Verdigris Valley Elec. Co‑op., 2016 OK 74, ¶ 38.

Because this case centers on the interpretation of federal and state statutes, the Court also applies de novo review to statutory interpretation issues, per Crawford v. OSU Med. Tr., 2022 OK 25, ¶ 5.

These standards are critical in understanding why the Court refused to accept defendants’ arguments about causation and impact in the absence of evidence.

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B. PREP Act Immunity: Causal Relationship and Evidence

1. The statutory scheme

The PREP Act (42 U.S.C. § 247d‑6d) was enacted in 2005 to encourage rapid deployment of medical countermeasures during public health emergencies by offering broad immunity:

• “Covered persons” (e.g., certain health-care providers, manufacturers, distributors) are immune “from suit and liability” for claims “caused by, arising out of, relating to, or resulting from” the administration to or use by an individual of a covered countermeasure. § 247d‑6d(a)(1).
• Section 247d‑6d(a)(2)(B) further explains that immunity requires a “causal relationship” between the claim for loss and the administration or use of the countermeasure, including its design, manufacture, labeling, prescribing, etc.
• A federal declaration by the Secretary of Health and Human Services triggers its operation. For COVID‑19, such a declaration was issued on March 17, 2020 and repeatedly amended; its applicability here was uncontested.
• Ordinary claims covered by immunity go not to court but to the Covered Countermeasure Process Fund. Claims of “willful misconduct” fall outside immunity but may be brought uniquely in the U.S. District Court for the District of Columbia. § 247d‑6d(e)(1), § 247d‑6e(a).

The Court notes an important structural contrast: the PREP Act applies to a narrower band of conduct (i.e., directly tied to “covered countermeasures”) but, when it applies, it is robust enough to bar even gross negligence claims, short of willful misconduct.

2. The defendants’ PREP Act theory

Defendants argued:

1. They were “covered persons” under the Act (e.g., as health-care providers).
2. They administered various “covered countermeasures” to Ms. Austbo—thermometers, PPE, budesonide, ipratropium–albuterol, and coordination of BAM therapy.
3. Therefore, because the alleged harm occurred while she was being treated for COVID, her claims for loss “arose out of” or were “related to” the use of those countermeasures, triggering immunity.

The Supreme Court avoids definitively ruling on points (1) and (2), instead assuming them arguendo. The dispositive defect is point (3): the absence of evidentiary proof of a causal relationship between any covered countermeasure and the alleged injuries.

3. The Court’s insistence on evidence of causation

Plaintiff’s petition alleged that Ms. Austbo suffered “skin breakdowns, dehydration, and malnutrition” because defendants failed to ensure basic necessities such as mobility, nutrition, and hydration. Defendants’ summary judgment materials asserted that they administered various countermeasures. But, as the Court emphasizes, nowhere did defendants’ evidentiary submissions document a causal link between those countermeasures and the injuries:

• No expert affidavit or deposition testimony explained that budesonide or ipratropium–albuterol commonly cause fatigue or anorexia in this setting, or that this occurred in Ms. Austbo’s case.
• There was no medical testimony connecting the covered measures to her dehydration, skin breakdowns, renal failure, or ultimate death.
• Nor was there evidence of a “prioritization or purposeful allocation” of countermeasures due to scarcity (an issue the Court notes in citing Maney v. Brown, 91 F.4th 1296, 1301 (9th Cir. 2024)), such that withholding a countermeasure could itself trigger immunity.

In a supplemental reply, defendants tried to fill this gap with argument:

• They posited that respiratory medications “can” cause stomach pain, flu-like symptoms, fatigue, and muscle weakness; and
• They suggested that, but for COVID and those medications, she would not have been so weak and unwilling to eat or drink.

The Court is blunt: “There is a problem. It is argument, not evidence.” Summary judgment calls for testing the “legal sufficiency of the evidentiary materials,” not speculative inference without support. The record contained:

1. No proof of the asserted side effects;
2. No evidence that Ms. Austbo actually experienced those side effects; and
3. No competent evidence that such side effects, if present, caused her to refuse food or water in a way that led to her injuries.

This rigorously separates the mere temporal association (“harm occurred while countermeasures were used”) from the statutorily required causal relationship.

4. Comparative case law: Wilhelms and Ashley

To illustrate the necessary evidentiary showing, the Court looks to two non‑Oklahoma decisions:

• Wilhelms v. ProMedica Health Sys., Inc., 205 N.E.3d 1159 (Ohio Ct. App. 2023):
  • The plaintiff, a COVID patient treated with a ventilator and respirator (covered countermeasures), developed pressure ulcers.
  • The trial court granted judgment as a matter of law under the PREP Act.
  • The Ohio Court of Appeals reversed, emphasizing there were no depositions or affidavits linking the ventilator/respirator to the pressure ulcers—hence a genuine issue of material fact remained as to causation.
  • The Oklahoma Supreme Court sees this case as parallel to Austbo in terms of evidentiary gaps.
• Ashley v. Anonymous Physician 1, 245 N.E.3d 658, 2024 WL 4142508 (Ind. Ct. App. 2024):
  • Another COVID patient developed bedsores while sedated and ventilated.
  • Defendants submitted affidavits opining, to a reasonable degree of medical certainty, that the injuries were due to the necessary intubation, sedation, and immobilization required to treat COVID and keep the patient alive.
  • The Indiana Court of Appeals affirmed summary judgment for defendants, holding that such proof met the PREP Act’s causal relationship requirement.
  • Here, the Oklahoma Supreme Court treats Ashley as the model of how to properly support a PREP Act immunity defense.

From this comparison, the Oklahoma Court draws a clear lesson: PREP Act immunity at the summary judgment stage is fact‑ and evidence‑dependent. Because defendants in Austbo presented no analogous expert or medical testimony tying covered countermeasures to the claimed injuries, their claim to PREP immunity fails as a matter of law on this record.

Notably, the Court expressly leaves open the possibility that, at trial, defendants could prove that countermeasures contributed to or caused injuries like dehydration, malnutrition, or pressure injuries. It is not categorically barred; it is simply unproven here.

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C. Oklahoma’s COVID‑19 Act: “COVID‑19 Health Care Services,” “Impact,” and Gross Negligence

The Oklahoma COVID‑19 Public Health Emergency Limited Liability Act, 63 O.S. § 6406, provides state-level immunity:

“A health care facility or health care provider shall be immune from civil liability for any loss or harm to a person with a suspected or confirmed diagnosis of COVID‑19 caused by an act or omission by the facility or provider that occurs during the COVID‑19 public health emergency, if:

1. The act or omission occurred in the course of arranging for or providing COVID‑19 health care services for the treatment of the person who was impacted by the decisions, activities or staffing of, or the availability or capacity of space or equipment by, the health care facility or provider in response to or as a result of the COVID‑19 public health emergency; and
2. The act or omission was not the result of gross negligence or willful or wanton misconduct of the health care facility or health care provider rendering the health care services.”

There is no dispute that:

• Defendants are “health care facilities” or “health care providers”;
• Ms. Austbo had a confirmed diagnosis of COVID‑19;
• Her care occurred during the Governor’s declared COVID‑19 public health emergency (March 15, 2020 to May 4, 2021).

The controversy centers on subsections (C)(1) and (C)(2).

1. Defining “COVID‑19 health care services” under § 6406(C)(1)

Section 6406(B)(8) defines “health care services” broadly:

“any services provided by a health care facility, health care provider, or by an individual working under the supervision of a health care facility or provider, that relate to the diagnosis, assessment, prevention, treatment, aid, shelter, assistance, or care of illness, disease, injury, or condition.”

The immunity provision in § 6406(C)(1) uses the phrase “COVID‑19 health care services,” which the Court interprets, by incorporating the statutory definition and the COVID qualifier, to mean:

“any services provided by a health care facility or provider (or supervised individual) that relate to the diagnosis, assessment, prevention, treatment, aid, shelter, assistance, or care of COVID‑19 and related illnesses, injuries, or conditions.”

On the record, the Court has little difficulty finding this criterion met:

• Ms. Austbo was admitted to Greenbriar because of COVID‑19;
• Her deterioration, as both Dr. Snyder and Dr. Clark recognized, occurred while she was being treated for COVID‑19 and its sequelae;
• Dr. Clark explicitly opined that different management would have led her to survive “her COVID infection,” underscoring that her care context was COVID‑centric.

Thus, the “in the course of providing COVID‑19 health care services” prong is satisfied.

2. The “impact” requirement: a separate and ambiguous element

The problematic portion of § 6406(C)(1) is the “impact” clause, which reads (emphasis added):

“for the treatment of the person who was impacted by the decisions, activities or staffing of, or the availability or capacity of space or equipment by, the health care facility or provider in response to or as a result of the COVID‑19 public health emergency.”

The Court identifies two possible interpretations:

1. “Everyone is impacted” reading: Any person who receives COVID‑19 health care services is ipso facto “impacted” by the provider’s decisions and activities during the emergency.
2. “Actual impact” reading: A person must show that her care was in fact affected by decisions, staffing levels, or resource constraints arising from the broader COVID‑19 public health emergency (e.g., diverted resources, staffing shortages, repurposed spaces, postponed procedures).

The Court rejects the “everyone is impacted” approach for two main textual reasons:

• Surplusage: If all COVID‑treated patients automatically satisfy the “impact” requirement, then much of the clause (“decisions, activities or staffing…availability or capacity…in response to… the COVID‑19 public health emergency”) becomes superfluous. The Court applies the canon that statutes must, where possible, be read to give effect to every word and avoid rendering language a nullity. See Rickard v. Coulimore, 2022 OK 9, ¶ 12.
• Distinct reference to the “public health emergency”: The statute does not say “in response to COVID‑19” but rather “in response to or as a result of the COVID‑19 public health emergency.” That phrase, read in light of the Governor’s executive orders, refers to system‑level disruptions: postponed elective surgeries, cross‑licensing of out‑of‑state professionals, expansion of facilities, and telemedicine mandates. These are responses to an aggregate crisis, not just an isolated infection.

The Court concludes that the “impact” element is a separate, additional requirement distinct from the mere receipt of COVID‑19 health care services. To obtain immunity, a provider must show both that:

1. It was providing COVID‑19 health care services; and
2. The injured person’s treatment was actually affected by decisions, activities, staffing, or capacity issues that arose because of the system‑wide public health emergency.

While the Court acknowledges that the threshold for “impact” is not high—echoing a North Carolina court’s observation that a similar element “does not appear difficult to meet” in light of the pandemic (Lynch v. Citadel Elizabeth City, LLC, 2022 WL 2707701)—it nonetheless insists that some evidence of impact is required.

3. Application: No evidentiary showing of “impact” in this record

Defendants’ briefing asserted generally that “Mrs. Austbo was impacted by the medical decision‑making of Defendants in response to or as a result of the COVID‑19 public health emergency.” But, as with the PREP Act argument, this statement was not tethered to evidentiary materials.

The closest defendants came was in noting that Greenbriar had a segregated COVID unit and restricted visitors. But the referenced deposition testimony failed to establish:

• That Ms. Austbo actually resided in that COVID unit; or
• That the existence of a COVID unit or visitor restrictions affected staffing levels, available equipment, or decision‑making in a way that changed the care she received, or the timing and quality of interventions relevant to her dehydration, pressure wounds, or discharge planning.

The Court underscores that even though, in practical terms, many if not most COVID patients may have been impacted by system‑level emergency responses, immunity cannot be presumed. It must be supported by evidence in the summary judgment record. Such evidence may not be hard to produce (e.g., affidavits describing staffing shortages, diverted resources, repurposed rooms), but its absence here is fatal to the defense at this stage.

4. Gross negligence under § 6406(C)(2): a fact question

Section 6406(C)(2) conditions immunity on proof that “[t]he act or omission was not the result of gross negligence or willful or wanton misconduct.” As the Court notes, this is a peculiar immunity structure because it requires defendants to prove a negative, but courts must apply the text as enacted.

Under Oklahoma law:

• 25 O.S. § 6 defines “gross negligence” as a “want of slight care and diligence.”
• Lee v. Oklahoma Mem’l Hosp., 1989 OK 88, ¶ 5, characterizes gross negligence as “the intentional failure to perform a manifest duty in reckless disregard of the consequences or in callous indifference to the life, liberty or property of another.”

Defendants presented no expert evidence on the applicable standard of care or causation concerning Ms. Austbo’s hydration, nutrition, wound care, and discharge planning. Plaintiff, by contrast, submitted Dr. Clark’s sworn affidavit. After an extensive factual recitation, Dr. Clark opined:

“In my opinion, discharging a patient like Ms. Austbo, with clearly worsening wounds, worsening hypernatremia, worsening renal failure, and worsening dehydration, without any plan to address her serious issues with fluid administration, wound care, lab monitoring, and close follow‑up shows a lack of even the most basic and slightest care a physician and nursing facility should provide any patient.”

He further stated:

“In all reasonable medical probability, if Ms. Austbo’s wounds had been prevented and/or addressed more aggressively and her worsening hypernatremia, acute renal failure, and metabolic encephalopathy had been addressed sooner she would have survived her COVID infection.”

Defendants never challenged Dr. Clark’s qualifications or methodology at the summary judgment stage. Given those unchallenged opinions, the Court concludes that reasonable minds could differ on whether defendants’ conduct rose to the level of gross negligence. Factors include:

• Family’s expressed desire to take Ms. Austbo home;
• Both Dr. Snyder and Dr. Clark agreeing hospice was an appropriate recommendation;
• The fact that she was discharged without any arrangement for hospice or home health, despite worsening objective derangements and pressure wounds;
• Her immediate deterioration upon discharge and readmission to the ICU, culminating shortly thereafter in death.

Because the COVID‑19 Act explicitly denies immunity where gross negligence is present, and because there is a genuine factual dispute on that point, summary judgment is improper even before reaching any jury findings or Daubert determinations on Dr. Clark’s testimony.

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D. Evidentiary Rulings: Affidavits vs. Unsworn Letters

The Court also affirms a discrete—but practically important—evidentiary ruling:

• Oklahoma’s summary judgment statute allows consideration of affidavits. 12 O.S. § 2056.
• An affidavit is a “written declaration, under oath, made without notice to the adverse party.” 12 O.S. § 422.
• Dr. Clark’s initial letters were not sworn, and thus not affidavits. The trial court correctly struck them.
• His later submission was a proper sworn affidavit, which the defendants did not move to strike or challenge. The Supreme Court treats it as part of the competent summary judgment record.

This reinforces a basic but often overlooked rule: expert statements offered at summary judgment must be in sworn form or equivalent (e.g., deposition testimony, properly sworn declarations), not informally submitted letters.

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V. Simplifying Key Legal Concepts

1. PREP Act basics

• Covered person: Generally, a category of actors—including certain health-care providers, entities, manufacturers, and distributors—who, if they meet statutory criteria, may receive immunity.
• Covered countermeasure: A drug, device, vaccine, or similar intervention specifically identified in the HHS Secretary’s declaration as intended to prevent, diagnose, or treat the emergency condition (here, COVID‑19).
• Causal relationship requirement: The injury must be caused by, arise out of, relate to, or result from the administration or use (or certain related activities) of the countermeasure. It is not enough that care simply occurred during the pandemic or in a facility treating COVID patients.

2. Oklahoma COVID‑19 Act concepts

• COVID‑19 health care services: Services that relate specifically to the diagnosis, treatment, or care of COVID‑19 and its associated illnesses or conditions.
• “Impacted by the decisions, activities or staffing…in response to the COVID‑19 public health emergency”:
  • Requires showing that systemic responses to the state‑wide emergency (e.g., staff shortages, reallocation of beds, visitor restrictions, use of non‑traditional spaces) affected the patient’s care;
  • Is not automatically satisfied merely because the patient had COVID‑19 or received COVID‑related care.
• Gross negligence vs. negligence:
  • Negligence: Failure to use ordinary care—that level of care that a reasonably prudent person (or professional) would exercise under similar circumstances.
  • Gross negligence: More extreme; defined as the “want of slight care” and involves an intentional failure to perform a clear duty in reckless disregard of likely serious consequences or with callous indifference to others’ safety.
  • Under § 6406(C)(2), ordinary negligence can be immunized, but gross negligence cannot.

3. Summary judgment in practical terms

• Not a mini-trial: The judge does not weigh credibility or decide facts; instead, the court asks whether there is any real dispute about facts that matter.
• Evidence, not assertions: Lawyer arguments, unverified statements, and speculation do not count. Only sworn affidavits, deposition testimony, documents, and other admissible materials matter.
• Burden on the moving party: The party seeking summary judgment must show, with evidence, that no genuine dispute of material fact exists and that the law entitles them to judgment.

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VI. Broader Impact and Future Litigation

A. Clarifying the Limits of COVID‑19 Immunity in Oklahoma

Austbo sends a clear signal: Oklahoma courts will not treat COVID‑era immunity provisions as blanket shields. Instead, they will:

• Read the statutes carefully and give effect to limiting language (like “causal relationship” and “impact”);
• Demand concrete evidentiary support for every statutory element of an immunity defense at the summary judgment stage;
• Respect jury functions where witnesses and experts disagree on the nature and severity of alleged negligence.

Providers and facilities seeking immunity should anticipate the need to:

• Document how specific patient care decisions were constrained by staffing, capacity, or policy changes arising from the public health emergency;
• Obtain expert testimony that directly links covered countermeasures (or their necessary withholding) to the patient’s injuries when raising PREP Act immunity;
• Address gross negligence allegations with affirmative expert evidence describing the standard of care and explaining why their departures, if any, do not approach “want of slight care.”

B. Harmonizing Federal and State Frameworks

The Court’s opinion implicitly delineates distinct roles for:

• Federal PREP Act immunity: Narrow in scope (tied to specific countermeasures), but powerful in effect (barring even gross negligence claims and rerouting most claims to a federal compensation fund). It is evidence‑driven—no immunity without proof of a countermeasure‑related causal nexus.
• State COVID‑19 Act immunity: Broader in scope (any COVID‑related health care services), but weaker on the merits (no protection for gross negligence or willful/wanton misconduct) and contingent on the “impact” of the system‑wide public health emergency.

The decision also implicitly cautions that defendants cannot collapse these distinct requirements into a single notion that “everything done for a COVID patient is protected.”

C. Guidance for plaintiffs and defendants

For defendants, Austbo underscores:

• The importance of detailed affidavits (from treating providers and system administrators) explaining how emergency conditions shaped triage decisions, resource allocation, and staffing;
• The need for medical expert opinions that trace alleged injuries directly to countermeasures where PREP immunity is claimed;
• The prudence of affirmatively addressing gross negligence and not assuming it will be dismissed as a matter of law.

For plaintiffs, the case demonstrates:

• That COVID‑era immunity statutes are not insurmountable if you can develop:
  • Evidence that ordinary, non‑emergency standards of care were ignored (especially on fundamental needs like hydration, nutrition, and wound care); and
  • Expert testimony tying those deviations to tangible harms and, where applicable, to gross negligence standards.
• The strategic value of framing claims in terms that are not inherently countermeasure‑driven (e.g., bedsores, dehydration, unsafe discharges) unless the defense can tie those harms back to specific countermeasures.

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VII. Conclusion

Austbo v. Greenbriar, 2025 OK 85, is a foundational Oklahoma precedent on COVID‑19–related medical immunity. The Supreme Court rejects a broad, status‑based notion of immunity (“if it happened while the patient had COVID, immunity applies”) and replaces it with a disciplined, text‑driven approach that:

• For the PREP Act, requires evidentiary proof of a causal relationship between a covered countermeasure and the claimed injuries;
• For the Oklahoma COVID‑19 Act, separates:
  • Provision of “COVID‑19 health care services,” from
  • A distinct requirement that the patient was actually impacted by system‑wide decisions, staffing, or capacity constraints responding to the COVID‑19 public health emergency;
• Recognizes that unresolved disputes over gross negligence—especially when supported by expert affidavits—must go to the jury and bar summary judgment on immunity grounds.

By reversing summary judgment, the Court neither condemns nor exonerates the defendants; it instead insists that novel statutory immunities be applied with the same evidentiary rigor as any other affirmative defense. Future COVID‑related medical cases in Oklahoma will now proceed under this framework, with Austbo serving as the primary guide to what providers must show—and what plaintiffs may contest—when COVID‑19 immunity is invoked.