Baker, S.J.
Statement of the Case
Elmer Waggoner (“Elmer”) caught COVID-19 and was placed in several hospitals to treat his severe symptoms. During hospitalization, he developed a pressure wound, also known as a bed sore, in his lower back. The wound resisted treatment and turned septic, leading to Elmer’s death.
Shantel Waggoner (“Waggoner”), acting as both the mother of Elmer’s dependent children and as the executrix of Elmer’s estate, filed a proposed complaint with the Indiana Department of Insurance (“IDI”). She alleged that over eighty proposed defendants, including hospitals and doctors, had committed medical malpractice while treating Elmer’s wound.
The defendants, including Anonymous Healthcare System, Inc. (collectively, “AHS”), petitioned the trial court to determine a preliminary question of law and moved for summary judgment. AHS argued it was statutorily immune from liability because: (1) it provided medical care to Elmer during a COVID19 emergency; and (2) Elmer ultimately died while hospitalized from a complication derived from COVID. The trial court granted summary judgment for all defendants and ordered the dismissal of Waggoner’s complaint.
On appeal, Waggoner argues the trial court erred in addressing issues that should be reserved for a medical review panel’s determination. Concluding that she is correct, we reverse and remand with instructions.
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… After a plaintiff files a proposed complaint, but before the panel issues its opinion, a party may, in limited circumstances, file a motion with a trial court to decide a preliminary issue. Ind. Code § 34-18-11-1(a) (1998). The court may perform one or both of two tasks: “determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure; or . . . compel discovery in accordance with the Indiana Rules of Procedure.” Id. Even so, a court “has no jurisdiction to rule preliminarily upon any affirmative defense or issue of law or fact reserved for written opinion by the medical review panel[.]” I.C. § 34-18-11- 1(b)…. As a result, “[a] trial court’s authority to rule on preliminary matters is to be narrowly construed.” Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 191 (Ind. 2011).
Waggoner argues the trial court erred in determining AHS was immune from liability. She claims immunity hinges on an issue reserved for the medical review panel, specifically causation. That is, Waggoner claims Elmer’s pressure wound and his subsequent death were caused not by COVID-19 or AHS’s treatment of his COVID-19 symptoms but by the negligence of some or all of the defendants in preventing and treating the pressure wound. She concludes the question of immunity cannot be decided until the panel decides the causation issue.
AHS disagrees, citing three statutes that purportedly grant immunity to the defendants…
1. Providing Health Care Services During a State Disaster Emergency
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AHS argues that any acts or omissions that may have fallen below the accepted standard of care and proximately caused Elmer’s injury or death were related to “the provision or delay of health care services or emergency medical services” arising from Governor Holcomb’s declaration of a COVID emergency. As a result, AHS claims immunity from Waggoner’s suit. We disagree.
The question of whether all or some of the defendants’ provision of services to Elmer for his pressure wound “arose” out of the state disaster emergency hinges upon causation, a matter for the medical review panel to decide..
Further, the plain language of Indiana Code section 34-30-13.5-1(b) provides that it applies only during a period when a state disaster emergency is in effect. There is no dispute that the Governor rescinded the declaration while Elmer was receiving treatment. Any acts of medical malpractice that occurred after that date would not be immunized by Indiana Code section 34-30-13.5-1(b).
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2. Premises Immunity
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Here, the key part of Indiana Code section 34-30-32-6 is the word “arising.” Indiana Code section 34-30-13.5-1(b) also uses “arising,” and in both statutes it implicates causation: what caused Elmer’s pressure wound to develop, and what actions or inactions caused the sore to end Elmer’s life? Based on the conflicting evidence presented by the parties, and being mindful of our duty to narrowly read statutory grants of immunity against the right to sue for compensatory damages, we conclude the question of causation should be left to the medical review panel.
3. Federal Law – Covered Countermeasures
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Elmer was on a ventilator and multiple medications while he was in AHS’s care, which would seem to meet the definition of “covered countermeasures.” But the question of causation remains a matter to be decided by the medical review panel. The phrase “caused by, arising out of, relating to, or resulting from” explicitly raises causation. We conclude it is too early in the proceedings to determine whether AHS is entitled to immunity under 42 U.S.C. § 247d6d(b)…
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Conclusion
For the reasons stated above, we reverse the judgment of the trial court and remand with instructions to deny AHS’s Petition. [34] Reversed and remanded with instructions.
Pyle, J., and Felix, J., concur.