Indiana’s Adams County Superior Court Dismisses Malpractice Claim for Treatment of COVID-19 under State Immunity Statute

Written by: Jeffrey T. Wolber, Esq.

On February 1, 2022, Judge Samuel K. Conrad of the Superior Court of Adams County, Indiana, granted summary judgment on behalf of a hospital and EMS entity. (Anonymous Hospital v. Peterson, No. 01D01-2107-CT-000014 (Adams Superior Court Feb. 1, 2022)). The petitioners/defendants asserted immunity under Ind. Code §§ 34-30-13.5-1 and 34-30-13.5-2. (They did not assert immunity under the federal PREP Act.)

The case involved a decedent’s presentation to Adams County Memorial Hospital via Adams County EMS on July 3, 2020, where he was diagnosed with COVID-19 and admitted. As per the Court’s findings of fact, his condition worsened and within two days he was intubated and placed on a ventilator. Due to limited capacity in the hospital’s intensive care unit, arrangements were made to transport him to another hospital via an ambulance with a ventilator. However, he went into cardiac arrest during the transport. He was stabilized in the ambulance (which was still in the parking lot), returned to the hospital, and ultimately transferred by helicopter. His wife alleged that he developed brain damage and died on July 17, 2020 as a result. The court found that all of the care provided was solely for the decedent’s diagnosis of COVID-19, and that all complications the patient sustained were related to complications from COVID-19.

It appears the plaintiff/respondent did not offer any evidence to counter the proposed statements of fact made in support of the motion, but instead argued that the court lacked jurisdiction to entertain a motion for preliminary determination before the medical review panel had issued its expert opinion under § 34-18-10, et seq. The court determined that no such opinion was necessary because the issue of whether the defendants acted with the requisite intent for gross negligence (an exception to immunity) did not require medical expert opinion under Indiana law. Therefore, it granted the motion and dismissed the action.