Medical malpractice; Application of the Pandemic Health Care Immunity Act (PHCIA); MCL 30.411(4); MCL 691.1475 & 1477; Executive Orders 2020-30, 2020-61, & 2020-150; Comparing Warren v McLaren Flint & Skipper-Baines v Board of Hosp Managers for the City of Flint; “Gross negligence”; MCL 691.1473(a) & (e); Summary disposition under MCR 2.116(C)(8); El-Khalil v Oakwood Healthcare, Inc; Personal representative (PR)

Because it appeared at the pleading stage “that the decedent did not sustain injury by reason of healthcare services provided in support of the State of Michigan’s response to the COVID-19 pandemic,” the court reversed the trial court’s order granting defendants-medical providers summary disposition, and remanded. Plaintiff-PR sued defendants alleging their medical negligence caused the 88-year-old decedent’s death. The trial court, relying on the PHCIA, granted summary disposition for defendants. On appeal, the court, applying binding precedent, found defendants were “not immune from liability for medical malpractice and ordinary negligence.” It noted the “immunity conferred by the PHCIA in MCL 691.1475 just applies to injuries sustained ‘by reason of’ services provided by a healthcare provider or facility ‘in support of this state’s response to the COVID-19 pandemic.’” It observed that unlike “the plaintiff in Warren, the decedent in this case was not admitted to the hospital with symptoms of COVID-19, she was never treated for COVID-19, and there [was] no indication that she ever tested positive for COVID-19.” Indeed, those facts made “the request for immunity here even weaker than the immunity claim that [was] rejected in Skipper-Baines, where the decedent suffered injuries unrelated to COVID-19, but subsequently contracted COVID-19 while hospitalized, and then died of the disease.” The court rejected defendants’ argument that “even if the decedent developed pressure ulcers that were not properly diagnosed or treated, that deficiency was ‘a byproduct of the very demands, restrictions, protocols, uncertainties, and overall chaos considered by the governor and the legislature.’” It noted the trial court “granted summary disposition under MCR 2.116(C)(8), and nothing in the complaint even suggests that any factual basis for that argument exists.” And given that “relief under MCR 2.116(C)(8) depends on nothing but the contents of the pleadings,” it could not “review evidence or factual allegations presented by defendants.” Beyond that, if it accepted their “capacious approach to the immunity granted by the PHCIA in MCL 691.1475, ‘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.’” Further, as the court “astutely observed in Skipper-Baines, ‘[t]he Legislature and the Governor would not have limited the immunity conferred pursuant to this statute to services supporting the pandemic response if it actually intended for all medical providers to be immune from all liability short of gross negligence.’”