State Supreme Court says doctors have limited COVID-era malpractice protections, but questions the Governor’s authority to confer it

The state Supreme Court has decided that doctors and hospitals were entitled in limited cases to immunity from pandemic-era medical malpractice claims, but the justices raised doubts about such protections in future public health emergencies by declining to answer the question of whether Gov. Ned Lamont acted outside the law when he conferred immunity by executive order.

The court reached the seemingly disparate conclusions in decisions released this week on malpractice suits by the families of two patients who died while undergoing treatment in the early stages of the pandemic.

In one, the court said the Regency House nursing home in Wallingford is not entitled to immunity after a patient there died after being dropped by nursing home staff, suffering two broken legs and left lying in bed, untreated and unmedicated for days.

In the second case, the court rolled back some of the immunity to which a lower court said Hartford Hospital was entitled when a patient died of a heart attack after apparently being misdiagnosed with COVID-19. The court said the hospital and its physicians were only partially immunized by Lamont’s order and reinstated other claims that had been dismissed by a trial court.

But the court said there is an “important caveat” to its decisions to uphold malpractice immunity conferred by what’s known as Lamont’s executive order 7A. It questioned whether, at the outset, the governor had the statutory or constitutional authority to immunize malpractice because, by doing so, he effectively rescinded the long-established common law right of victims of malpractice and other negligence to file lawsuits and seek compensation in the courts.

For the purposes of resolving the two cases before it, the court said, in a unanimous decision written by Justice Steven D Ecker, that it “assumed, without deciding,” that the governor was legally authorized to create and confer the immunity. It said it is leaving “the resolution of that question to another day.”

The justices decided against resolving the issue of gubernatorial authority for several reasons. It said none of the parties to the suits raised the constitutional issue. The court acknowledged it could raise and resolve the issue on its own and it even solicited supplemental briefs on the question from interested third parties. But in the end, the court said it would wait for a more appropriate case.

“Although these questions are of a sufficiently ‘public character’ to warrant this court initiating review, we have determined that their resolution should await more appropriate circumstances,” the court said. “It is evident that the limitations of supplemental briefing in this case do not afford a sufficiently robust platform to address the legal issues raised … by the court, including, but not limited to, whether medical malpractice in a wrongful death action should be characterized as statutory or common law in nature,” the court said.

“This omission naturally raises a colorable question as to whether the legislature in fact delegated such authority to the governor, and, if not, whether any other source of authority supported the order as to this matter,” the court said.

The intent of order 7V was to provide a degree of liability protection that would help hospitals and other providers remain open in the early days of a pandemic that left them short staffed, under-supplied and overwhelmed by patients with an unknown and frightening new disease.

But the families in both cases argued that the order was short-sighted and exceeded the governor’s authority.

The court’s decisions in both the Regency nursing home and Hartford Hospital cases resolved conflicting interpretations of the scope of Lamont’s order. The court also examined whether malpractice alleged against Hartford Hospital and its doctors was covered by another kind of immunity from lawsuits conferred by federal Public Readiness and Emergency Preparedness or PREP Act.

The court interpreted Lamont’s order to mean that immunity applies when the alleged malpractice was connected to the health care provider’s services in support of the state’s COVID-19 response, even if the provider was not treating the injured party for COVID-19.

PREP conferred immunity from lawsuits and liability for injuries resulting from the use of pandemic countermeasures such as vaccines and diagnostic tests.

Regency claimed it deserved immunity because its staff was overworked and working with limited resources in support of the fight against COVID.

But the court, in a unanimous decision by Justice Gregory T. D’Auria, said Regency failed to show that problems such as staff shortages and lack of personal protection equipment were responsible for the fall and subsequent lack of treatment that preceded its patient death.

“For example, the defendants provided no evidence regarding how the lack of these resources led to the defendants’ failing to implement (the patient’s) health program, leading to her fall,” the court said. “They also supplied no evidence regarding how the lack of these resources related to the defendants’ failure to provide (the patient’s) treatment for two days.”

In the Hartford Hospital case, Backus Hospital in Norwich notified Hartford that it was transferring a patient it had diagnosed as experiencing or about to experience a heart attack. When the patient arrived in Hartford, the physician there decided she was suffering from COVID-19, not a heart attack, and deferred treatment until after obtaining a negative COVID test. At that point, early in the pandemic, obtaining a COVID test result from a state laboratory took days.

The patient died of a heart attack before she could be treated.

The Supreme Court issued multiple rulings in the Hartford Hospital case.

It upheld a trial court ruling that the hospital and its physicians were entitled to immunity for their actions prior to receipt of the negative COVID test, but not for what followed. But it reversed the trial court by ruling that the hospital could not claim immunity under PREP by arguing that cardiac treatment was delayed by a diagnostic test – the negative COVID test.