When COVID-19 arrived in America in early 2020, the health care community had to act immediately despite the danger and uncertainty surrounding a new lethal virus. In response, State and Federal government enacted executive orders and emergency acts designed to help protect health care workers from liability. We are now starting to see cases that originated from events that happened during the start of the pandemic. This month’s case is an example of what behavior the courts might consider protected, and what might not be.

Facts of the Case

Ms M, 63, worked as a registrar of patients in the emergency department of a small hospital. On March 21, 2020, Ms M presented to the emergency department complaining of a sore throat and a headache. She also told the staff that she had a heart condition. Ms M was put on a heart monitor and a series of tests were run. Dr A reviewed the tests and believed they indicated that Ms M was in danger of an ST-elevation myocardial infarction (STEMI). Since the small hospital did not have a cardiac catheterization lab, Dr A called her colleague Dr B in a larger nearby hospital and explained the situation and the need for a transfer to the larger hospital. Although Dr B disagreed with Dr A’s assessment, he agreed to have the patient transported to his hospital.

When Ms M arrived at the larger hospital, she told the staff that she did not know whether she had been exposed to COVID-19 while registering patients at the emergency department for her work. She also told staff that she had been exposed to her granddaughter who had recently been sick with a respiratory illness. Dr B ordered more cardiac tests and performed an examination of the patient, but he was concerned that Ms M might have COVID-19.

At that time, the hospital was experiencing a severe shortage of Personal Protective Equipment (PPE) necessary in the treatment of COVID-19 patients. To preserve the hospital’s limited supply of PPE, the hospital had enacted a policy not to admit patients suspected of having COVID-19 to the cardiac catheterization lab, absent an immediate and absolute need. The policy was in place to slow the spread of COVID-19 and save PPE supplies.

Dr B was aware that viral infections could cause an inflammation of the heart muscle and such an inflammation could cause the abnormal readings shown in Ms M’s cardiac tests. Based on this knowledge, Ms M’s test results, and the patient’s potential exposure to COVID-19 from her job, Dr B concluded that Ms M might be suffering from COVID-19.

Because of his concern that Ms M might have COVID-19, Dr B ordered that she be kept in isolation, tested for COVID-19, and placed on a heart monitor. This took place in the late afternoon of March 21, 2020.

Because rapid tests for COVID-19 were not available at the time, Ms M’s results did not come back until March 24, 2020, at 7:40 pm. Her test was negative. At that time, the hospital discontinued Ms M’s isolation protocols related to COVID-19. At 6 am the following morning (March 25), Dr B ordered that Ms M be treated at the cardiac catheterization lab. An appointment was set up for later that day, however Ms M was found dead on the floor of her room that same morning. The cause of death was listed as a heart attack.

After her death, her family filed a lawsuit, accusing the second hospital and Dr B (as well as some other clinicians) of gross negligence and wrongful death. In response, the defendants made a motion to dismiss claiming that they had immunity from liability due to the Governor’s emergency executive order which protected medical providers “while providing health care services in support of the state’s COVID-19 response” and the federal Public Readiness and Emergency Preparedness (PREP) Act which protects health care workers who are administering tests to diagnose for COVID-19.