Court nixes Flint hospital’s COVID shield claim in patient death

Michigan’s Court of Appeals has shot down a Flint hospital’s claim of legal immunity through a COVID-era executive order in the case of a 91-year-old patient who died after a violent attack in his hospital room.

Henry Henderson was recovering from minor gallbladder surgery at Hurley Medical Center in April 2020 when he was attacked with an IV pole by his roommate, a patient who was known to be violently unstable and had been assigned a hospital staffer as a “sitter.” The attack left Henderson nonresponsive, and he continued to decline despite interventions by trauma surgeons.

The listed cause of death was “COVID-19 associated pneumonia and complications thereof complicated by hypertensive and atherosclerotic cardiovascular disease,” according to a lawsuit filed by the Henderson estate. Henderson had contracted COVID sometime after admission to Hurley, according to the court.

Kimberly Skipper-Baines, the estate representative, sued the hospital, which claimed immunity granted to hospitals during the COVID pandemic. Executive Order No. 2020-30 waived liability for hospitals that provide “medical services in support of this state’s response to the COVID-19 pandemic.” The trial court found that this immunity protected Hurley Medical Center from liability in the case.

Three Court of Appeals judges — Allie Greenleaf Maldonado, Michael J. Kelly, and Michelle M. Rick — disagreed in an Aug. 22 ruling.

“If this interpretation were adopted, it is difficult to imagine any scenario in which a medical malpractice suit arising from acts and omissions occurring during the COVID-19 emergency could proceed,” the court wrote, noting that the alleged negligent act was to place the decedent with an unsafe roommate and not protect him.

“It is clear to us that neither of those were done in support of the pandemic response,” the court wrote. “There certainly will be gray area with respect to whether medical services were offered in support of the state’s pandemic response, but this particular case is black and white.”

The alleged acts, omissions, and injuries, according to the court, were “wholly unrelated” to the pandemic.

“The fact that the decedent apparently contracted COVID-19 at some point following his admission does not change the fact that he was not being treated at the hospital for COVID-19 or that the incident giving rise to this litigation was completely separate,” the court wrote.

Carlene Reynolds Weber, a lawyer who filed the appeal but has since left the law office of Cy Weiner, said she was thrilled with the ruling. Under the Coronavirus Aid, Relief, and Economic Security Act, hospitals were paid extra to care for patients, extra to care for COVID patients, and extra to care for each COVID patient placed on a ventilator.

"The way this case was handled was definitely an example of how businesses [and] government were abusing COVID privileges,” Weber told Michigan Capitol Confidential in a phone interview.

Hurley Medical Center has not responded to a request for comment.

It’s unclear how many other deaths in 2020 were blamed on COVID but were actually unrelated.