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In January 2022, Elmer Waggoner arrived at a hospital with COVID-19. By March 3, he was negative for the virus — and on March 29, he was dead. He’d developed necrotizing fasciitis from a bed sore.
By then, the state emergency declaration for COVID had also expired.
But an attorney for dozens of doctors and three anonymous hospitals argued before the Indiana Supreme Court Thursday that his family’s malpractice suit should be dismissed due to COVID-related immunity.
“The extent of COVID’S causation is it caused him to go to the hospital, and that’s it,” said attorney Arie Lipinski, representing Waggoner’s wife and children. “And defendants are asking this court to extend the immunity statutes, so broadly that just because a patient presents at a hospital with COVID-19, anything after that goes.”
Waggoner’s family filed a malpractice complaint against 86 defendants in March 2023. His treatment spanned several hospitals in Kentucky and Indiana as he was transferred back and forth several times.
A trial court granted summary judgment to the health care providers based on immunity related to the emergency.
The Indiana Court of Appeals reversed in January, finding that the question of whether all or some of the defendants’ services to him for his pressure wound “arose” out of the state disaster emergency hinges upon causation — something a medical review panel should decide.
“To be sure, Elmer was originally hospitalized for COVID-19, and he first developed the wound while prone and ventilated to treat his COVID-19 symptoms, but Waggoner submitted an expert’s opinion stating that Elmer’s death was caused by inadequate treatment of the pressure wound, not by his COVID-19 symptoms,” the appellate decision said.
But that decision conflicts with other immunity-related precedent in Indiana.
Justice Mark Massa said the immunity statutes were common-sense legislative action to not second-guess people working in the midst of an emergency.
“But we had cases of negligence for bed sores long before COVID. Is this the type of alleged malpractice that this statute was intended to immunize?” he asked.
Attorney Colleen Davis argued it is.
“When COVID first came out and when these laws were enacted, this was a disease we didn’t understand. This was a time where health care providers are putting their health and safety, the health and safety of their families, at risk so that they can care for our community. And this was also a time when providers were leaving the medical profession because they were afraid. And so, yes, resources were strapped.”
She added “this was an uncertain time, and I think the legislature really intended to protect those providers that are doing their best to care for our community.”
Chief Justice Loretta Rush noted that the immunity provisions don’t cover gross negligence or willful misconduct. But that wasn’t argued in the original complaint.
Lipinski said causation is key in the case and those are questions for a medical review panel — not a court.
And he noted that between March 3 — the day Waggoner tested negative and the governor rescinded the emergency — and March 29, several defendants treated him only for the necrotizing fasciitis and complications from the bed sore.
But Davis said a medical review panel can’t look at causation — only whether the defendants breached standard of care and whether that breach caused injuries.
“It’s never going to inform anyone as to whether these defendants should be immune,” she said.
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