(This story courtesy of MIRS, a Lansing-based news and information service.)
House Judiciary Committee members had some hard questions May 19 about legislation that would give immunity to hospitals, nursing homes, and health care providers from civil suits related to the COVID-19 pandemic.
In the end, the bill designed to tie up a loose end caused by the Legislature not extending the governor’s original emergency declaration didn’t move out of committee.
“If this bill passes, if it actually gets signed in its current form, which is incredibly unlikely, then plaintiffs would be unable to bring a suit or a theory saying that there was a failure to exercise appropriate care under the circumstances?” Rep. Brian Elder (D-Bay City) asked of Amy Barkholz of the Michigan Health and Hospital Association. She testified in support of SB 0899, sponsored by Sen. Michael MacDonald (R-Sterling Heights).
Elder contended that under current law, “a regime of Michigan tort reform, it is already incredibly difficult to bring medical malpractice cases.” In court, the judge would have to consider the circumstances, which would necessarily include the fact that the state is under a pandemic.
“You are saying that a person, if they can find a lawyer, if they can actually get all of the experts necessary to bring claims, they can’t walk into court and say, ‘they just failed to exercise the appropriate care, even though it was COVID-19.’ That will be the end result of this bill, correct?” Elder asked.
“There is no playbook for how to treat COVID. They are trying new treatments. They are learning from each other around the world. We are saying with that narrow circumstance, during this narrow period of time, that this should not be part of the tort system. In other words, we normally hold physicians and health care providers responsible under normal tort for care that didn’t go right, even if they didn’t mean for it to go wrong,” Barkholz responded. “For a COVID-related injury, we throw that out because no one knows what the heck to do and we are all trying our best. There should be immunity unless you did something grossly negligent or willful.”
Judiciary Committee Chair Graham Filler (R-DeWitt) said he was “heartened” by the discussion.
“The last thing I want to hear in a committee about a bill with this much impact is no questions. So I was glad every member asked really hard questions. So I will be interested in what the conversations look like going forward,” he said.
Filler said he supports the concept of the bill.
“This isn’t a political bill. This how do we deal with the situation that hospitals and health professionals were put in amidst the coronavirus, especially early on, I’m interested in what the conversation is going forward and I’m open ears right now.”
Members were concerned about patients not being able to get redress for injuries suffered under COVID-19 due to inappropriate care.
“The reality is, this is the virus’s fault. And we can’t sue the virus,” Barkholz told Judiciary. “That’s what we want, because damn it the virus should pay a lot for all of this. We can’t sue that. So, who can we sue? I understand (patients) need redress and MHA agrees with that, but I don’t think it is fair to say we’ll sue whoever we can. We can’t sue the government because they have governmental immunity. Who can we sue?”
Rep. Ryan Berman (R-Commerce Twp.) contends the bill includes language providing immunity for a lack of personal protective equipment (PPE) and other resources.
“It has that carve-out saying anything with personal protective equipment, resources, medical equipment or staffing is not considered to be willful or gross negligence, willful or intentional criminal misconduct, or intentional infliction of harm. So even if was, this bill is saying that it is not. That’s a problem,” Berman contended.
“I get what you are saying and I believe that the intent of the language in the bill is not to deny a suit if you can show that some health care provider was hiding equipment and not giving it to workers who needed it. But if they ran out because it was a pandemic and they couldn’t get it, then, yeah, that is included in there,” Barkholz said.
She contended that if there was any “deliberate withholding of PPE,” that would be excluded from immunity under the bill.
“Hospitals have been moving mountains to get PPE. Fortunately, the situation is much better now than it was in the early days, but we had hospitals doing everything they can, trying to get whatever PPE was available. Certainly, we don’t believe anybody was intentionally withholding it, but if it could be shown, this bill would not protect that,” Barkholz contended.
Rep. Gary Howell (R-North Branch) said that in Lapeer County, there have been 30 deaths as of last week, 20 were in nursing homes, and 18 were in one particular nursing home.
“There’s an allegation that the PPE was not available for a number of different reasons. You are telling me that you are going to protect vulnerable populations, that’s exactly the folks that died in Lapeer County in this situation. You are telling me this is in the public interest. I have a harder time with that,” Howell said. “This was a very bad situation, even if it was not deliberate or gross or intentional. I believe we are looking at something that may be denying a lot of people redress where it should be appropriately available.”
Barkholz said she would look to lawmakers to make people whole.
“But I just would say that to sue a hospital, to sue a nursing home, to sue a health care provider because they, like the rest of the world, couldn’t magically create masks, I don’t see how that helps the situation,” she said.
Another concern with the bill is the period of time it covers, providing immunity while the state of emergency continues or until September 30, whichever is later.
Barkholz noted that the immunity provided in the bill would only apply to COVID-related cases during that period of time.