COVID
JACKSON, Miss. - Mississippi’s statute shielding health care professionals from personal injury or wrongful death claims during the COVID-19 pandemic cannot stop a wrongful death lawsuit unless there’s no question that plaintiff’s claims “were attributable to the limiting effects of COVID-19 on healthcare resources,” the Mississippi Supreme Court ruled.
The Court’s Aug. 27 opinion, written by Associate Justice T. Kenneth Griffis and joined by four of his colleagues, reversed a trial court’s decision to dismiss a wrongful death lawsuit against a hospital and its treating physicians based on Mississippi’s COVID-19 immunity statute.
The case arose from the death of Johnessia Adams Lewis in February 2022 as a result of sepsis. On the afternoon of February 7, 2022, Lewis went to the emergency room at Marion General Hospital complaining of severe abdominal cramping and constipation. She was diagnosed with sepsis and, later that evening, she was admitted to the intensive care unit.
That night, Lewis’ blood pressure began to drop and continued to experience severe abdominal pain. Shortly after midnight on Feb. 8, the treating physician began the process to transfer Lewis to a hospital with surgical and gastroenterology services. She eventually was transferred to Highland Community Hospital and surgery was performed at around 2:30 p.m., approximately 24 hours after arriving at Marion General Hospital.
Lewis was later transferred to Forrest General Hospital for additional surgeries and treatments, which included amputations and dialysis. She eventually was admitted to the University of Mississippi Medical Center and died on Aug. 30, 2022, more than six months after she first went to the emergency room.
Cynthia Williams, on behalf of Kelby Bush, sued Marion General Hospital and the treating physicians claiming they were negligent by failing to properly diagnosis Lewis’ condition, failing to consult with other health care providers, and failing to timely transfer her to a facility with a higher level of care.
Defendants responded by arguing that they are immune from suit because “’[t]he inability to transfer [Lewis] was not related to [their] medical care or decision making, but was the direct result of the ongoing COVID spike [that] had effectively put all of the hospitals on diversion, during which they refused to accept transfers.’”
In response to the COVID-19 pandemic, Mississippi created immunity for health care providers “from suit for any injury or death directly or indirectly sustained because of the health care professional’s or health care facility’s acts or omissions while providing health care services related to a COVID-19 state of emergency.”
According to a report by the Center for Justice & Democracy at the New York Law School, at least 26 states and the District of Columbia created some sort of COVID-related tort immunity for health care professionals.
Relying on Mississippi’s COVID immunity statute, and focusing its decision on the claim that defendants failed to timely transfer Lewis to a surgical facility, the trial judge dismissed the case before trial.
This, Justice Griffis found, was reversible error. “Despite the trial court’s findings, the record reflects that a genuine issue of material fact exists as to whether Plaintiffs’ claims were ‘the result of circumstances and conditions existing [that] were attributable to the limiting effects of COVID-19 on healthcare resources,’” Griffis wrote.
The first issue, according to the court, was that the plaintiff’s claims were more than a failure to timely transfer Lewis to a surgical facility. The complaint also alleged failures to properly diagnose Lewis’ condition, to properly treat her condition, and to consult other health care professionals. The court found that no evidence was presented to the trial court that would support summary dismissal of these claims.
Beyond that, the court concluded that the trial court should not have dismissed the failure-to-timely-transfer claim because defendants failed to show that the delay in Lewis’ transfer was caused by the COVID emergency.
“[W]hether Defendants failed to timely transfer Lewis to a facility with a higher level of care is not before us,” Griffis reasoned. “Instead, the issue is whether that failure to timely transfer was attributable to the COVID-19 state of emergency. The record reflects that a genuine issue of material fact exists as to whether [the COVID immunity statute] applies to Plaintiffs’ failure-to-timely transfer claim. As a result, the trial court’s dismissal of this claim was improper.”
Justices Josiah Coleman and Jenifer Branning disagreed. The dissenters, in an opinion by Coleman, reasoned that central to Lewis’ claims was the failure to transfer her to a surgical facility. It was the delay in her transfer, as alleged by the plaintiff, that caused Lewis’ death, and defendants presented uncontested evidence that the delay was caused by a spike in COVID hospital admissions in that first week of February 2022.
“The trial judge got it right. The uncontradicted evidence submitted by Dr. Jensen establishes that the negligent omission, i.e., the failure to transfer, that the plaintiffs claim caused the death of the decedent, was ‘attributable to the COVID-19 state of emergency,’” the dissent argued. Such claims are barred by the Mississippi statute, they concluded.
The case is headed back to the trial court for further proceedings.
