A judge holds a gavel above a block in a courtroom.
ELGIN — A state appeals panel says a nurse practitioner isn't immune from medical negligence litigation for conduct that occurred during a declared pandemic, even if there may have been an order from Illinois' governor a judge thought made it so.
DeKalb County Circuit Court Judge Bradley Waller had dismissed a lawsuit facing nurse practitioner Julie McGhee under an immunity provision of the Illinois Emergency Management Act.
But the Illinois Second District Appellate Court overruled that decision and sent the complaint back to circuit court, allowing the lawsuit to proceed.
Justice Margaret Mullen wrote the panel’s opinion, filed Oct. 5; Justices Mary Schostok and Joseph Birkett concurred.
According to court records, the underlying lawsuit stems from the death of Rose Jarrett in May 2022. Her estate, led by John Wayne Jarrett, said Rose Jarrett underwent surgery in June 2021 at DeKalb’s Kishwaukee Community Hospital. She was readmitted just days after being discharged, then sent to Generations at Neighbors, a Byron rehabilitation facility that employed McGhee. A week later she was taken to Swedish Covenant Hospital in Rockford where doctors removed a “massive intrabdominal abscess with fecal peritonitis,” a life-threatening condition.
The estate alleged negligence while at Neighbors caused the abscess, which left Jarrett septic and caused a delay in chemotherapy for colon cancer and other complications
In arguing for dismissal and summary judgment, McGhee cited executive orders from Gov. JB Pritzker regarding Covid mitigation and an IEMA clause reading: “Any private person, firm or corporation, and any employee or agent of such person, firm or corporation, who renders assistance or advice at the request of the State, or any political subdivision of the State under this Act during an actual or impending disaster, shall not be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of willful misconduct.”
McGhee also cited language from Pritzker’s order, which in part stipulated: “Health Care Professionals shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission by the Health Care Professional, which injury or death occurred at a time when a Health Care Professional was engaged in the course of rendering assistance to the State by providing health care services in response to the COVID-19 outbreak.”
Judge Waller granted McGhee’s motion with prejudice. He found Pritzker’s disaster declaration triggered the IEMA immunity McGhee invoked, adding McGhee’s work as a nurse was “clearly at the request of the State” but did not, Mullen wrote, “specify what (he) believed constituted that request.”
On appeal, the estate argued any immunity referenced in Pritzker’s order expired before the week Jarrett spent at Neighbors. The panel said whether McGhee is immune turns on four factors: membership in the protected class, rendering aid or advice, acting at the government’s request and the presence of an “actual or impending disaster.”
The panel said the first and fourth factors aren’t in dispute, as McGhee worked for a health care provider and the timing of the disaster declaration is clear. It further said there isn’t serious dispute about whether McGhee and Neighbors were “rendering assistance," as the Illinois Supreme Court has already established immunity isn’t limited to direct Covid treatment.
The panel rejected McGhee’s contention the estate forfeited the question of whether she was acting at the request of the state, noting her immunity defense also didn’t strongly establish that position, then said the primarily relevant case law is two identically named suits, James v. Geneva Nursing & Rehabilitation Center, which originated in the Second District and reached the state’s top court.
“The salient point of James II, for our purposes,” Mullen wrote, is that a governor’s order is what grants — and defines the scope of — immunity, not the IEMA itself. In other words, the immunity the law defines is only applicable when the government executes the authority the law provides.
“The main problem for (McPhee) is that the executive orders that grant this immunity all expired long before the events that form the basis for plaintiff’s suit,” Mullen wrote. “Executive Order No. 2021-14, the order addressing the pandemic that was in effect at the time of these events, contained no provision granting this immunity. Clearly, none of the governor’s executive orders provide defendant with immunity in this case.”
Although McPhee said she attended many work meetings regarding Covid response, the panel noted she didn’t “identify any communications with specificity where” the government requested she implement specific recommendations or argue “why simply following an agency’s policy guidelines would be sufficient to satisfy the requirement that assistance rendered be at the request of the State.”
The panel said during a deposition the estate objected to McPhee’s testimony regarding how the Covid pandemic changed her job, specifically due to guidance from the Illinois Department of Public Health. Mullen said McPhee didn’t identify formal state agency communications “with any degree of specificity” and ultimately found she failed to meet a defendant’s burden to show qualification for the affirmative defense of statutory immunity.
“As defendant has offered nothing beyond general, conclusory assertions regarding the existence of a request for assistance by the State,” Mullen wrote, “we have nothing to evaluate — outside of the executive orders, which were no longer in effect — to determine if something other than the executive orders might satisfy the requirements set forth” in the state emergency law.
The panel noted Pritzker re-issued his initial executive order with new deadlines, implying they were intended to expire unless otherwise stated and not “to continue indefinitely through the pendency of his disaster proclamations.”
The estate is represented by attorneys from the firms of Pfaff, Gill & Ports, of Barrington Hills, and Gordon Gordon Centracchio, of Chicago.
McPhee is represented by the firms of Allen Galluzzo Hevrin Leake, of Rockford, and Clausen Miller, of Chicago.