Pandemic healthcare immunity under the Pandemic Health Care Immunity Act (PHCIA); MCL 691.1475; Franklin v McLaren Flint; Summary disposition for statutory immunity; MCR 2.116(C)(7)

The court held that defendants were not immune under the PHCIA because plaintiff’s malpractice claims did not arise from services provided in support of the state’s COVID-19 response. Thus, summary disposition under MCR 2.116(C)(7) was erroneous. Plaintiff, treated by defendant-urologist at a private urology practice for urine retention beginning in 4/20, alleged malpractice for failure to timely diagnose prostate cancer by not ordering PSA testing or biopsies, leading to metastatic disease. The trial court initially denied defendants’ PHCIA motion but later granted summary disposition on reconsideration, relying on Franklin. On appeal, the court held that PHCIA immunity requires a connection between the alleged negligent services and the state’s pandemic response. It emphasized that plaintiff was not “being treated for COVID-19” and there was no indication the private urology practice was engaged in COVID-19 care. The court rejected defendants’ argument that lack of onsite blood draws tied the care to COVID-19, noting that the doctor admitted his practice did not always have phlebotomists even before the pandemic, that he cited non-pandemic reasons for not checking PSA levels, and that he testified he gave plaintiff an order for an offsite PSA test that plaintiff did not complete. The court also stressed that the failure to obtain a PSA test was only one of several alleged omissions, including not obtaining tissue biopsies during multiple procedures, and defendants “have not claimed that the other alleged diagnostic shortcomings had some connection to the COVID-19 pandemic.” Because the record showed no such connection, plaintiff’s suit was not barred by the PHCIA and defendants were not entitled to immunity. Reversed and remanded.