My firm (shared with my co-founder) H2 Healthcare, LLC does a lot of legal work, primarily forensic and litigation support. My wife (and partner), Diane Hislop, RN, is likely the foremost (or certainly, top few) clinical compliance experts in the country in terms of senior living and post-acute care. This means, as a group, we pay attention to lots of compliance topics and of course, to court cases that are potentially relevant. An Arizona case fits that bill.
In Roebuck v. Mayo Clinic, the Arizona Appeals Court found that a COVID-19 liability shield law, passed to provide wide-birth, liability protection against COVID cases born or potentially, born within provider environments, was unconstitutional. In this case, the setting was/is a Mayo Clinic hospital. The decision however, effects all covered entities under the Arizona law (including Assisted Living, Skilled Nursing, etc.) The decision is available here: AZ Court of Appeals Roebuck v Mayo Clinic
The law, retroactive to March 2020 when passed and signed in 2021 by then Gov. Ducey, seeks to provide immunity to a broad category of persons and institutions.
- A person who furnishes consumer or business goods or services or entertainment.
- An educational institution or district.
- A school district or charter school.
- A property owner, property manager or property lessor or lessee.
- A nonprofit organization.
- A religious institution.
- Th[e] State [of Arizona] or an agency or instrumentality of th[e] state.
- A local government or political subdivision of th[e] state, including a department, agency or commission of a local government or political subdivision of th[e] state
- A service provider as defined in [Arizona Revised Statutes] Section 36-551.
- A health professional as defined in [Arizona Revised Statutes] Section 32-3201, including a person who is supervised by the health professional in the course of providing health care services.
- A health care institution as defined in [Arizona Revised Statutes] Section 36-401.
What is delineated as protected or “shielded” is defined as follows.
- “A person or provider that acts in good faith to protect” another individual “from injury from the public health pandemic is not liable for damages in any civil action for any injury, death or loss to person or property.”
- SB 1377 creates a presumption that “[a] person or provider … acted in good faith if the person or provider adopted and implemented reasonable policies related to the public health pandemic.”
- To overcome this good faith presumption, an injured individual must prove “by clear and convincing evidence that the person or provider failed to act or acted and the failure to act or action was due to … willful misconduct or gross negligence.”
(the above information courtesy of Ogletree Deakins)
The case involved Robin Roebuck (plaintiff) who filed a negligence claim against Mayo Clinic. Roebuck was a heart transplant recipient that got COVID in April 2020 and was hospitalized. Cardiac echogram tests showed no heart damage, but blood gas tests showed that he had low blood oxygen levels warranting monoclonal antibody therapy.
The next day, Roebuck developed complications from the procedure and underwent emergency surgery that left him with diminished strength and the use of his right hand and arm, plus additional scarring.
The case was originally dismissed on summary judgement in favor of Mayo based on the “shield law”. The appellate court reversed the decision and has remanded the case to the Arizona Supreme Court.
The appellate court noted the statute did not only raise the burden of proof for medical malpractice claims; it barred all claims for ordinary negligence arising out of COVID-related care. Per the court, this was a violation of the Arizona constitution. The court found that the legislature left “no reasonable alternatives or choices” for bringing negligence claims against providers.
Mayo also contended that the case should be dismissed due the federal PREP Act. PREP is a federal statute providing immunity to covered entities engaged in the administration of covered COVID-19 countermeasures. The court said that the related events that caused Roebuck harm did not qualify as a covered intervention. More on the PREP Act is available here: https://aspr.hhs.gov/legal/PREPact/Pages/default.aspx
What continues to be important to watch are the cases that are challenging the immunity provided under the PREP Act to providers that “used” covered countermeasures (as defined). PREP provisions preempt state provisions but do not preclude state claims, necessarily. In 2020, 22 states passed COVID liability protections in some form or fashion. AND, the 9th District Court in June of this year, sent almost two dozen COVID cases involving senior living facilities to state courts, after the Supreme court’s refusal to hear a case that could have determined if lawsuits (COVID) should be heard at the state or federal level.
I’ve always said that COVID could produce significant wrongful death and/or negligence litigation unless clarity on liability was provided at the Federal level. Maybe Confucious was right… “may you (we) live in interesting times.”