Slip & fall in a hospital shower during the COVID-19 pandemic; Medical malpractice/negligence; Immunity for non-COVID medical care under the Pandemic Health Care Immunity Act (PHCIA); MCL 691.1475(5); Franklin v McLaren Flint; Skipper-Baines v Board of Hosp Managers for the City of Flint; Meaning of “in support of this state’s response to the COVID-19 pandemic”; “Health care services” (MCL 691.1473(d)); Jokinen v Beaumont Hosp Troy; Gross negligence; Tarlea v Crabtree

The court held that the PHCIA did not bar plaintiff-estate’s ordinary negligence claim and that no reasonable jury could find gross negligence on this record. The decedent (R) was hospitalized in 4/20 during the early COVID months, tested negative for COVID-19, and was never treated for it. While preparing for discharge, he asked to shower. A nurse assistant stayed with him for most of the shower, then briefly stepped out to grab towels after warning him to remain seated on the shower chair. In those few moments, he stood, slipped, suffered a traumatic subdural hemorrhage, and died two days later. The trial court granted the hospital summary disposition of plaintiff’s negligence claim under the PHCIA, but allowed an amended gross negligence claim to proceed. On appeal, the court first rejected PHCIA immunity, emphasizing the statute’s nexus requirement and finding this case “closer to Skipper-Baines and Jokinen than to Franklin.” It stressed that the decedent “did not have COVID-19, and defendant did not treat him for it,” that there was “no evidence that the shower was mandated or required in response to the COVID-19 pandemic,” and that the assistant left only “to retrieve an extra towel because the shower curtain did not adequately divert water from the floor.” It concluded that “the trial court erred in granting immunity to defendant under the PHCIA.” It also rejected the gross negligence claim, holding that the assistant’s conduct in providing a chair and rails, remaining for most of the shower, instructing the decedent to stay seated, and stepping out for roughly 15 seconds, did not show the “almost a willful disregard” required. “No reasonable juror could conclude defendant displayed such apathy for [R] as to rise to the level of gross negligence,” and the record showed “that the nurse assistant’s conduct was not ‘so reckless as to demonstrate a substantial lack of concern for whether an injury results.’” Reversed and remanded.