Connecticut’s Supreme Court sought to define the scope of emergency pandemic legal immunity for healthcare providers in a pair of rulings last week, which skirted a question of whether the governor had the authority to grant that protection.
The state’s high court issued rulings in two cases challenging the extent to which health care and nursing home providers were protected from malpractice litigation under a controversial emergency order issued by Gov. Ned Lamont in April of 2020 during the outset of the COVID-19 pandemic.
In both cases, the court grappled with whether the executive order granted providers broad immunity for any actions taken while supporting the state’s response to the pandemic, regardless of whether the actions were connected to COVID-19, or a more narrow interpretation of the order, only granting immunity to providers for COVID-related treatments.
The court found both extremes “unpersuasive” and landed somewhere in the middle.
“An immunity that applies when the acts or omissions that caused the injury are connected to the health care provider’s services in support of the state’s COVID-19 response, even if the defendant was not treating the injured party for COVID-19, maintains a close fit between the grant of public health emergency authority in [statute], the terms of the executive order, and the express policies underlying that order,” Justice Steven Ecker wrote.
In one decision, the Supreme Court upheld a lower court’s ruling declining to dismiss a wrongful death case against Regency House nursing home in Wallingford, where a patient, Darlene Matejek, broke both her legs as a result of a fall during a bed transfer and went untreated and unmedicated for days. Matejek died months later due to complications, which her family contends stemmed in part from pain and suffering resulting from the fall.
In a second decision, the court narrowed the immunity granted to Hartford Hospital in another complaint brought by the family of Cheryl Mills, who died of a heart attack after treatment was delayed by providers who incorrectly believed she had COVID-19 and waited days for the results of a test for the virus.
The court concluded that the hospital was protected by immunity for actions taken before the negative test results returned, but not for the actions taken afterward.
“[T]he immunity conferred by Executive Order No. 7V does not turn on whether the defendants’ acts or omissions were negligent but on whether their acts or omissions had a connection to health care services provided in support of the state’s COVID-19 response,” Ecker wrote. “There is no such connection with respect to events after receipt of the negative COVID-19 test.”
The lawsuits testing health care provider immunity are among many complaints to challenge emergency executive orders issued by Lamont during the pandemic. So far, the Supreme Court has upheld the governor’s emergency orders.
However, the Supreme Court included a caveat in one of last week’s decisions, which acknowledged potential constitutional questions as to whether Lamont had the authority to grant legal immunity to health care providers in the first place.
The briefings in the Mills case did not allow a “sufficiently robust platform” to explore the issue, Ecker said.
Although the court declined to rule on those questions last week, it expected their eventual resolution would impact both ongoing liability issues related to COVID-19 and those potentially created by future public health emergencies.
“Accordingly, in our analysis of the issue as presented to us, we have assumed, without deciding, that the governor was legally authorized to create and confer the immunity at issue in the present case … and leave the resolution of that question to another day,” the justice wrote.
