On Jan. 12, ISMA filed a motion to appear before the Court of Appeals of Indiana as an amicus curiae (“friend of the court”) in the case of Anonymous Doctor 3 and Anonymous Medical Group 3 vs. Carol Fluhr, Individually and as Personal Representative of the Estate of Ed Fluhr, Deceased. The ISMA is joined in the brief by the American Medical Association Litigation Center. This is the first case to go before an Indiana appellate court addressing enforcement of Indiana’s COVID-19 immunity statute for health care providers.
On March 23, 2021, Carol Fluhr filed a wrongful death action with the Indiana Department of Insurance against several physicians and health care entities who provided treatment to her husband at the onset of the COVID-19 pandemic in April 2020. Fluhr’s husband presented with COVID-19 symptoms and was treated in the emergency room and admitted to the hospital, but ultimately died. Mrs. Fluhr alleges her husband was having a stroke.
The proposed complaint is still going through the medical review panel process (which is why the parties legally must be deidentified in court proceedings), but two defendants -- a physician who is a member of ISMA and a medical group -- filed a motion for preliminary determination of law and for summary judgment in a Marion County trial court on Dec. 2, 2022, seeking to have the case against them dismissed, which was granted in June 2023.
The trial court agreed that the COVID-19 immunity statute (Public Law 166-2021) insulated them from liability in this instance, but the plaintiffs submitted a notice of appeal soon after.
The grounds for the dismissal were from legislation that ISMA helped pass in 2021. The law states, in part, that if a health care provider’s alleged act or omission was due to “the implementation of policies and procedures to . . . prevent or minimize the spread of COVID-19,” the provider cannot be sued for negligence. Although not adopted until April 2021, the COVID immunity statute was retroactive to March 1, 2020. In this specific case, Anonymous Doctor 3 documented they were unable to conduct a full-contact physical examination of the patient because of hospital protocols requiring isolation of the patient pending COVID-19 test results. Those protocols were put in place as a result of the COVID-19 public health disaster emergency declared by Gov. Eric Holcomb.
Having been intimately involved in the passage of the COVID-19 immunity statute for health care providers, ISMA is well-positioned to address the Court of Appeals on how that legislation should be interpreted and applied.
ISMA’s brief painstakingly reminds the Court of Appeals of the dire circumstances faced by physicians and other health care practitioners -- especially during the early months of the pandemic -- when Mr. Fluhr was treated and passed.
“Immunity statutes encourage health care providers to adopt policies and procedures that are better designed to meet the unique challenges of a global pandemic and protect the health and welfare of a broader array of stakeholders, including the patient population, the public at large, and health care workers,” the brief states. “Immunity statutes lend clarity and stability to health care systems by relieving health care providers of the distraction of potential lawsuits in a chaotic work environment that is already fraught with uncertainty and unpredictability. And by encouraging the implementation of measures to prevent or minimize the spread of COVID-19, immunity statutes contribute to the physical and psychological safety of health care workers.”
In the brief, ISMA also reminds the court of the timelines leading up to the enactment of the statute, from the first reported case of COVID-19 in Indiana, to Gov. Holcomb’s declaration of a public health emergency, to the unprecedented executive orders and other special directives and government-issued guidelines that impacted health care protocols, to the passage of the statute. The brief explains that the legislative intent was to codify the crisis standards of care that were in effect at the time, and physicians cannot be held to ordinary standards of care during an infectious disease public health emergency.
“The General Assembly wisely sought to protect an essential industry from liability for continuing to perform services vital to the health and welfare of Hoosiers in the midst of a global pandemic,” the brief states. “The COVID-19 immunity statute represents the General Assembly’s sound legislative judgment that health care providers should not be subject to civil liability, based on conventional standards of care, for how they render medical services under crisis conditions.”
ISMA is committed to defending this statute which was enacted to protect physicians who cared for both sick and healthy patients during the pandemic, and will keep members updated on the case.