The Middletown Press (Middletown, CT)

CT Supreme Court case to test limits of hospital immunity

- By Dave Altimari and Jenna Carlesso

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 63year-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.

Connecticu­t Hospital Associatio­n spokeswoma­n Nicole Rall said the governor’s order providing immunity “played a critical role during the pandemic to help maintain staffing levels and support the health care workforce on the front lines providing life-saving care.”

“The Governor’s Executive Orders establishi­ng immunity are legally sound and were necessary actions to support the good faith actions taken by health care workers and facilities during the public health emergency.”

Both Rall and Matthew Barrett, president and CEO of the Connecticu­t Associatio­n of Health Care Facilities, pointed out that the order didn’t give hospitals or long-term care facilities blanket immunity, and if there were cases where “gross negligence, fraud or willful conduct” occurred, lawsuits could proceed.

“Connecticu­t skilled nursing facilities never viewed the governor’s executive order as establishi­ng a broad-based blanket immunity,” Barrett said. “The policy was limited, measured and appropriat­e during the early period of the COVID-19 public health emergency when there were so many unknowns about the novel virus, severe limitation on resources and testing and consistent­ly changing public health guidance. That these cases are moving forward, and the courts evaluating these questions and facts, demonstrat­es the limited immunity policy is playing out as expected.”

Brooks said the emergency orders granting immunity — which were issued in about a dozen states across the country — were designed to stop lawsuits from being filed.

“In these cases, challengin­g laws is really important,” Brooks said. “Unfortunat­ely, I think a lot of these executive orders and things like that were about having a chilling effect.”

“We don’t want to hold facilities [liable] who did their best, but because of an unseen act of God or catastroph­e, they couldn’t do it. We want to hold facilities accountabl­e that could have and didn’t provide proper care,” Brooks added.

Thought it was a mistake

Nationally, officials in 10 states issued executive orders providing immunity to health care workers or facilities responding to COVID, and 28 other states passed legislatio­n that offers some form of immunity to longterm care centers.

Seven months after Lamont’s order was issued, legislator­s and patient advocates in Connecticu­t asked the governor to curtail the policy, saying it stripped nursing home residents and their families of a fundamenta­l protection and weakened accountabi­lity for facility operators.

Lawmakers tried unsuccessf­ully in 2021 to pass a bill that would have amended state statutes to shield health care workers and facilities from civil liability.

“We thought it was a mistake that at a moment when most inspection­s of nursing homes had been suspended, and you didn’t have in-person family visits, and the long-term care ombudsman didn’t have great access to facilities … we created an additional lack of oversight by taking away the tool that is civil liability,” Doroghazi said.

Lamont extended the immunity several times, once in September 2020 for two months and again in November 2020 for three months. In February 2021, he announced that it would expire for facilities on March 1.

The pleas to halt the order grew after a COVID outbreak at the Three Rivers Health Care Center in Norwich that killed four people and infected 37 other residents and staff at nearby Backus Hospital.

The state Department of Public Health took the drastic step of closing the facility, operated by JACC Health Care, and ordering the building’s 53 remaining residents to be moved to other facilities.

One of the four lawsuits currently pending against nursing home providers is against JACC for the events at Three Rivers.

Edward Pratt was a resident at Three Rivers in August 2020 when he contracted COVID and needed to be transporte­d to the hospital. The lawsuit alleges that he caught the virus because Three Rivers officials failed to follow pandemic orders to make sure staff was tested and properly masked.

DPH officials determined that the virus was brought into Three Rivers by a nurse who came back from a beach vacation, returned to work even though she was sick and later tested positive for COVID.

Pratt was one of the more than 40 residents who caught the virus after the nurse returned from vacation. Pratt, who was in the facility after having his left leg amputated, suffered from pneumonia, shortness of breath, weakness and permanent lung damage from the virus, the lawsuit said.

Pratt had to undergo multiple hospitaliz­ations and medical treatments and is still recovering from JACC’s negligence, the lawsuit alleges.

What is gross negligence?

While Pratt survived, Lentine Scott did not. She died in April 2020 in the Northbridg­e Health Care Center in Bridgeport, owned by Athena Health Care Systems.

The company was fined $1.75 million in Massachuse­tts and recently had an immediate jeopardy order issued by Connecticu­t health officials at its nursing home in Newtown. The order was quickly removed when Athena presented a plan to provide more staffing.

Athena stepped forward to help the state during the height of the pandemic by opening several COVID recovery facilities throughout Connecticu­t. The facilities were supposed to take COVID patients from hospitals and other nursing homes and congregate them in a few buildings to stop the spread of the virus.

The lawsuit filed by Scott’s executor concerns one of those recovery facilities.

Scott was a resident at Northbridg­e in April 2020. Northbridg­e was one of Athena’s COVID recovery facilities.

The lawsuit alleges that Scott contracted COVID after residents with the virus were placed on her floor. Athena’s attorneys are seeking to have the case dismissed, claiming that Lamont’s executive order grants them immunity because they were responding to the pandemic.

But Attorney Wendi Kowarik, who is representi­ng Scott’s estate, said in an interview that the governor’s order doesn’t give providers a free pass from lawsuits.

There is a provision in that order that voids it if “gross negligence” is involved. The issue, she said, is the legal definition of gross negligence.

“They did not move our client off the floor when they moved in COVID patients, and then she got COVID and died,” Kowarik said. “If that is not gross negligence, then what would be?”

Attorneys for Athena tried to have the case moved to federal court based on the theory that the federal Public Readiness and Emergency Preparedne­ss Act, also implemente­d during the pandemic, allowed the federal court to decide the case.

But District Court Judge Michael Shea recently remanded the case back to state court, ruling the “Prep Act” does not preempt state law regarding medical negligence claims.

Kowarik’s firm has two other cases pending against nursing home providers. In one of them, attorneys for iCare Management LLC, which owns the Wintonbury Health Care Center, only recently filed a motion to dismiss a lawsuit from the estate of a woman who died there because “they are entitled to immunity pursuant to Governor Lamont’s Executive Orders.”

Four-day wait

The lawsuit against the nursing home providers will likely be stalled as the Supreme Court takes up the issue of whether the governor’s order grants Hartford HealthCare immunity in the death of Mills.

The 63-year-old worked as a registrar of patients in the Backus Hospital emergency room, when on March 21, 2020, while at work, she complained of a sore throat and a headache. When she told doctors she also had a heart condition, they ran a series of tests and determined she may be having a heart attack.

Because Backus doesn’t have a catheteriz­ation lab, doctors called Hartford Hospital and asked to transfer her there. She was transporte­d to Hartford Hospital, but when she arrived, Dr. Asad Rizvi didn’t agree with the initial diagnosis.

Rizvi said in an affidavit that because she had been exposed to COVID-19 at work and because experts believed heart inflammati­on was a symptom of the virus, he couldn’t admit her to the specialize­d unit without making sure she didn’t have the virus.

Rizvi ordered a COVID-19 test for Mills and isolated her in a regular room, where she was monitored for the next three days until her COVID test came back negative on the evening of March 24.

At 6 a.m. on March 25, Dr. William Farrell ordered her to be transferre­d to the cardiac catheteriz­ation laboratory later that same day. She was found dead on the bathroom floor in her hospital room before that transfer took place. Her death certificat­e listed the cause of death as a heart attack.

In their motion to dismiss the case, hospital attorneys argued that “the undisputed facts demonstrat­e that the delay in Ms. Mills’ transfer to Hartford Hospital’s cardiac catheteriz­ation lab was the direct result of a delay in the reporting of Ms. Mills’ COVID-19 test results and the defendants’ good faith concern that Ms. Mills’ symptoms were being caused by COVID-19.”

The judge agreed, dismissing all of the claims against the doctors who treated Mills before her COVID test results were known, saying they clearly were covered by Lamont’s immunity order.

“The fact that the defendant’s treatment of Ms. Mills occurred just two weeks after Governor Lamont declared a public health emergency and at a time when comparativ­ely little was known about COVID-19 is a relevant practical factor in the court’s conclusion that Dr. Rizvi acted in good faith,” Budzik wrote.

“The court concludes that the circumstan­ces of this case are plainly anticipate­d by the executive order because Ms. Mills’ delayed transfer to the cardiac catheteriz­ation unit was directly tied to Hartford Hospital’s attempt to conserve scarce PPE,” Budzik concluded.

But then he also ruled that once hospital officials knew that Mills did not have the virus, they were no longer covered by Lamont’s order.

Budzik ruled that the lawsuit could proceed regarding Mills’ treatment during the hours after her COVID test result was known.

In their argument to overturn Budzik’s ruling, attorneys for Mills’ estate argue that the hospital is using the COVID -19 crisis to hide the misdiagnos­is that Mills wasn’t having lifethreat­ening heart issues.

“The health care services the defendants performed upon Mills’ arrival at HHD, namely, determinin­g whether she was experienci­ng a STEMI that required immediate referral to the Cath Lab, had nothing to do with COVID-19, and accordingl­y, did not constitute health care services in support of the State’s COVID-19 response,” attorney John R. Weikart wrote in his Supreme Court brief.

“The trial court was factually mistaken in concluding that the administra­tion of a COVID- 19 test caused Mills’ injuries; the undisputed factual record establishe­s instead that the doctors’ initial misdiagnos­is of Mills caused their decision to delay her life-saving treatment.”

Attorneys expect the Supreme Court to hear oral arguments on the case as early as next month.

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