CT Supreme Court case to test limits of hospital immunity

Cheryl Mills, a Colchester resident with a serious heart condition, had been in Hartford Hospital for five days when she died on the bathroom floor of her room in March 2020.

For four days, the 63-year-old had been waiting for the result of a COVID test so she could be cleared to enter the hospital’s special cardiac treatment area. The negative test result came through at 7:40 p.m. on March 24.

At 6 a.m. the next day, a doctor finally ordered her transfer. She was scheduled to be moved to the special unit later that day. A heart attack came first.

Her estate sued the hospital, but an executive order issued by Gov. Ned Lamont at the beginning of the pandemic granted hospitals and nursing homes legal immunity as they worked through the early days of the COVID pandemic.

Now, the circumstances of Mills’ case have become the center of a state Supreme Court legal battle over how far that immunity can be extended, and other cases involving Connecticut nursing homes could be affected by the outcome.

Both Hartford HealthCare and Cheryl Mills’ estate are appealing the ruling of Superior Court Judge Matthew Budzik, who agreed that the hospital was covered under immunity for the first four and a half days Cheryl Mills was at Hartford Hospital in March 2020 but was not immune after they found out she did not have COVID.

The stakes are potentially high. If the court agrees that Hartford Hospital was covered by Lamont’s order, it would set a precedent that would make it difficult for other families to use the courts to seek answers to why loved ones died.

If the court overrules Budzik’s order, it could mean more wrongful death lawsuits could be filed against nursing home providers at a time when many of them are struggling financially as they recover from the pandemic.

“A lot of people will never know how their loved one died. And for some, litigation might be the only way they’ll ever find out, through the discovery process,” said Sam Brooks, an attorney and director of public policy for The National Consumer Voice for Quality Long-Term Care.

“A lot of people were just called and told, ‘Your loved one died.’ I’m not saying litigation is always the way to get to the bottom of the facts, but for some folks, that will be their only avenue,” Brooks said.

Not tested here

“This is a heart attack case, not a COVID-19 case,” Mills’ attorney Elisabeth Swanson said. “We don’t think the governor’s order was intended to cover what happened here. We aren’t attacking the order itself. We want to make sure it is being interpreted narrowly — for the actual treatment of COVID-19 patients and to not be used to give them a pass on medical malpractice.”

Attorneys for Hartford HealthCare, the owners of Hartford Hospital, also are appealing the judge’s ruling, arguing that the whole event is “an archetypal case for immunity” under the governor’s order.

“Plaintiff attempts to invoke fears that applying immunity here would lead to immunity in all sorts of cases. But immunity here is no stretch,” Hartford HealthCare’s attorney Brendan N. Gooley wrote in his Supreme Court brief.

Gooley’s firm, Carlton Fields, is representing Hartford HealthCare

and Dr. William Farrell, who ordered Mills be moved to the special catheterization unit after the COVID test came back.

“Doctors had a good faith belief that a patient complaining principally of a sore throat and a headache had COVID-19 and doubted she was having a heart attack,” Gooley wrote. “That good faith belief regarding COVID-19 immediately, substantially, and irreversibly altered the patient’s treatment.

This is a prototypical case for immunity, not a case on the outer limits of immunity. Whatever the outer limits of immunity are, they are not tested here.”

Controversial order

On April 5, 2020, about a month after Connecticut’s first recorded case of COVID and two weeks after Mills’ death, Lamont issued executive order 7U, which shielded nursing homes and hospitals from civil liability, except in cases of “crime, fraud, malice, gross negligence or willful misconduct.” The immunity applied to both health care workers and the facilities that employed them.

“In order to encourage maximum participation in efforts to expeditiously expand Connecticut’s health care workforce and facilities capacity, there exists a compelling state interest in affording such professionals and facilities protection against liability for good faith actions taken in the course of their significant efforts to assist in the state’s response,” the governor wrote in the order.

It was a controversial order from the start, with advocates arguing it allowed health care institutions to use the pandemic as an excuse for negligent care.

“When you don’t have access to other forms of oversight and protection, that seems like a moment when you shouldn’t also be denied your redress of last resort, which is what the courts are,” said Anna Doroghazi, associate state director of advocacy and outreach for the AARP in Connecticut.

“Residents needed accountability more than ever in those moments, and we took it away from them,” she added.

Nursing homes were particularly hard hit at the beginning of the pandemic as the virus spread quickly, killing thousands. At the same time, state officials were worried about hospitals getting overrun with patients and a shortage of personal protection gear for health care workers trying to treat infected patients.