The Indiana Supreme Court heard arguments Sept. 25 on the extent of liability protection supplied by state and federal COVID shield laws.

The case arises from a proposed malpractice claim filed by the widow of a Kentucky man who died in March 2022, two months after being hospitalized in Indiana for COVID-19. Three weeks into his illness, immobilized and on a ventilator, Elmer Waggoner developed a bedsore on his back which became infected and ultimately led to his death. Waggoner’s widow is seeking to pursue malpractice claims against more than 80 defendants, including 56 individual physicians.

A trial court initially dismissed the case, citing one federal and two state laws granting civil immunity for all medical care “arising from” treatment for COVID during the two-year state and federal health emergency. The widow appealed to the Indiana Court of Appeals.  The appeals court ruled the medical review panel, which evaluates malpractice claims, should be allowed to assess whether Waggoner’s death was caused by COVID or the infected wound.

In oral arguments before the Indiana Supreme Court, attorney Colleen Davis, representing six health care facilities and ownership groups, argued that Waggoner’s entire hospital stay arose from his COVID infection and is thus covered by the immunity laws. The immunity laws carve out exceptions for “gross negligence” or “willful misconduct,” but Davis said the proposed complaint makes no effort to allege either of those standards applies. She argued all three laws are purposely worded broadly to encompass not just the COVID infection itself but the full range of medical complications.

Waggoner attorney Arie Lipinski argued that while the respiratory damage from COVID led to Waggoner being placed on the ventilator, the immunity statute covers only the decision to do so, not the treatment of the bedsore which developed afterward.

The Court could decline to accept the case, thus letting the Court of Appeals ruling stand and sending the complaint to the medical review panel.  Alternatively, the Court could accept transfer and make its own ruling for one side or the other. The Court does not have a fixed deadline to issue its decision.

Last year, a different three-judge Court of Appeals panel ruled Indiana’s COVID immunity law barred a malpractice complaint in the death of a man whose stroke diagnosis was impeded by COVID protocols in place at the time. The Supreme Court, after ISMA filed an amicus brief in support of the shield laws, declined to accept the case.

Because the review panel has not yet approved the filing of a complaint, the physicians, physician practices, occupational and physical therapists, and health care facilities targeted by the case are not identified in the court filings.