On May 9, the Indiana Court of Appeals (COA) upheld the dismissal of a wrongful death lawsuit against a physician and medical group, in the first case testing the applicability of Indiana’s COVID-19 immunity statute for health care providers. 

Earlier this year, ISMA filed an amicus curiae, or “friend of the court,” brief in Carol Fluhr, Individually and as Personal Representative of the Estate of Ed Fluhr, Deceased v. Anonymous Doctor 1, et al. The American Medical Association, through the Litigation Center, joined in the brief. 

In its published opinion, the COA concluded that the health care providers were acting under policies intended to prevent or minimize the spread of COVID-19 such that the providers are immune from civil liability as a matter of law. The court thanked the ISMA and the AMA “for their helpful brief.”

The court's decision begins with the history and language of the COVID-19 immunity statute, enacted in 2021, which grants immunity for an act, omission, or delay relating to health care or emergency medical services arising from a state disaster emergency declared in response to the COVID-19 outbreak. As the appellate judges recognized, the immunity statute covers a “broad array” of activities in this context, including implementing policies and procedures to prevent or minimize the spread of COVID-19. Such emergency protocols were the central focus of the court’s analysis.

Because the patient in the case was suspected of having COVID-19, he was subject to the isolation procedures then in place. A note in his medical records indicated that the physician was “unable to perform a full contact physical exam of [the patient] due to Covid protocols at the hospital.” The COA determined that this “falls under the category for implementing policies and procedures designed to limit the spread of COVID-19. . . . Thus, we have no difficulty in finding Defendants qualify for immunity here.”

On appeal, the plaintiff argued that the evidence did not support the application of the immunity statute, relying on the affidavit of an expert witness who opined, after the fact, that there was no “medical reason” a health care provider was prevented from completing a comprehensive physical examination of the patient. But as the COA observed, “[t]his statement does not rebut Defendants’ immunity. Whether a medical reason justified Defendants’ alleged failure to promptly perform a full contact physical examination is irrelevant to the existence of the COVID-19 protocols.” 

The COA also found no evidence of gross negligence or willful or wanton misconduct toward the patient’s care to trigger an exception to immunity under the statute. In the appellate court’s view, “[t]he only reasonable conclusion reached from the designated evidence is that [the patient] received care in line with that expected during an uncertain time – April 2020 – while the world grappled with a global pandemic.”

The plaintiff has until June 10 to appeal the decision to the Indiana Supreme Court. This case brings full circle the advocacy ISMA has undertaken on this issue, which began in the General Assembly and continues in the courts.

ISMA remains committed to defending the COVID-19 immunity statute and will keep its members updated on further developments.