The Court Decides

First the court looked at the Governor’s emergency executive order which protects health care professionals and health care facilities from lawsuits for any “acts or omissions undertaken in good faith while providing health care services in support of the state’s COVID-19 response.” The court noted that the order specifically stated that it applied to “acts or omissions undertaken because of a lack of resources, attributable to the COVID-19 pandemic.” As applied to the facts in the case, the court concluded that the executive order gave the defendants immunity from a lawsuit for any acts or omissions that occurred before Ms M’s COVID-19 test came back negative.

The court believed that Dr B and the hospital had a good faith belief that they might be treating a COVID-19 patient based on Ms M’s employment in an emergency department, her exposure to her sick granddaughter, and Dr B’s awareness that viral infections could cause abnormal cardiac readings. The court concluded that Ms M’s delayed transfer to the cardiac catheterization lab was directly tied to the hospital’s attempt to conserve scarce PPE.

The court then looked at the federal PREP Act which provides immunity for COVID-19 countermeasures, including diagnostic tests, treatment, prevention or mitigation of COVID-19. The court concluded that the PREP Act provided immunity from claims arising prior to the negative COVID-19 test since those claims are related to and arise out of a COVID-19 diagnostic test. The court held that between March 21 and March 24 at 7:40 pm, the hospital was awaiting the test results and thus had immunity from lawsuits.

However, and very importantly, the court held that neither the Governor’s order nor the PREP Act protected the hospital or health care professionals for acts or omissions that occurred after March 24 at 7:40 pm. Once Ms M’s negative COVID-19 results came back, and the hospital had actual knowledge that she was not suffering from the virus, it could no longer claim that it was responding to COVID-19. Despite the negative test result, the hospital still delayed Ms M’s transfer to the cardiac catheterization lab until the following day.

The court dismissed the claims based on the defendants’ acts or omissions prior to March 24, 2020 at 7:40 pm but is allowing the claims based on acts or omissions after 7:40 pm on March 24th to proceed.

The Takeaway

Expect to see more cases related to liability in the time of COVID-19 in the future. If this case is any indication, courts may be willing to give immunity from lawsuits related to COVID-19 (especially early in the pandemic when less was known about the virus), but once it is clear a patient does not have COVID-19, this immunity ends.