Mills v. Hartford Healthcare Corp.

347 Conn. 524

298 A.3d 605

Kristin MILLS, Administrator (Estate of Cheryl Mills)

v.HARTFORD HEALTHCARE CORPORATION et al.

SC 20763, (SC 20764), (SC 20765)

Supreme Court of Connecticut.

Argued April 27, 2023

Officially Released August 8, 2023^*

Richard A. O'Connor, Middlebury, with whom, on the brief, were Michael G. Rigg, Hartford, and Rebecca N. Brindley, for the appellant in SC 20763 (defendant William J. Farrell ).

Wesley W. Horton, with whom were Brendan N. Gooley and Kenneth J. Bartschi, Hartford, and, on the brief, John C. Pitblado, Jonathan Friedler and Lauren Graham, Hartford, for the appellant in SC 20764 and the appellee in SC 20763 and SC 20765 (named defendant) and the appellee in SC 20763, SC 20764, and SC 20765 (defendant Asad Rizvi ).

James P. Sexton, Hartford, with whom were John R. Weikart and, on the brief, Gail Oakley Pratt and Megan L. Wade, Hartford, for the appellant in SC 20765 and the appellee in SC 20763 and SC 20764 (plaintiff).

Stuart C. Johnson, with whom, on the brief, were April H. Rosenkrantz and Andrew S. Wildstein, Hartford, for the appellees in SC 20765 (defendant Melissa Ferraro-Borgida et al.).

Joshua Perry, solicitor general, with whom were Michael K. Skold, deputy solicitor general, and, on the brief, William Tong, attorney general, for the state of Connecticut as amicus curiae.

Jennifer L. Cox and Jennifer A. Osowiecki, Hartford, filed a brief for the Connecticut Hospital Association as amicus curiae.

Bryan M. Killian, Hartford, filed a brief for the United States Chamber of Commerce as amicus curiae.

Keith M. Blumenstock, David J. Robertson and Jeannine M. Foran, Bridgeport, filed a brief for Athena Health Care Associates, Inc., as amicus curiae.

McDonald, D'Auria, Mullins, Ecker and Seeley, Js.

ECKER, J.

This court recently discussed the legality of certain executive orders issued by Governor Ned Lamont in response to the catastrophic effects of the pandemic caused by the spread of the potentially fatal coronavirus disease 2019 (COVID-19). See Casey v. Lamont , 338 Conn. 479, 481–83, 258 A.3d 647 (2021). The present appeals require us to consider the scope and application of Executive Order No. 7V, which purports to confer immunity on health care providers in connection with Governor Lamont's March, 2020 declaration of a public health emergency.¹ We also must address similar questions with respect to 42 U.S.C. § 247d-6d, a provision in the federal Public Readiness and Emergency Preparedness Act (PREP Act) that confers immunity from suit and liability for injuries sustained as the result of the application or use of certain pandemic countermeasures (e.g., COVID-19 diagnostic tests).²

These issues arise in the context of a wrongful death action filed by the plaintiff, Kristen Mills, the daughter of the decedent, Cheryl Mills, and the executor of her estate. The complaint alleges that the decedent died after she was misdiagnosed as having a non-life-threatening heart condition, when she actually was suffering from a life-threatening heart condition. According to the complaint, her death was the result of negligent and grossly negligent medical care provided by the named defendant, Hartford HealthCare Corporation, doing business as Hartford Hospital (hospital), and the defendant physicians, Asad Rizvi, Melissa Ferraro-Borgida, Brett H. Duncan, and William J. Farrell.³ The defendants moved to dismiss the complaint on the ground that they were immune from suit and liability under Executive Order No. 7V and the PREP Act in light of the role that COVID-19 had played in their diagnosis and treatment decisions. The trial court concluded that the defendants had immunity under Executive Order No. 7V for the allegedly negligent acts and omissions undertaken before the receipt of the decedent's negative COVID-19 test result and immunity under the PREP Act for the allegedly grossly negligent acts and omissions undertaken during that same period. The court consequently granted the motions to dismiss the counts against Rizvi, Ferraro-Borgida, and Duncan. The court further concluded, however, that the only physician responsible for the decedent's care after receipt of the negative test result, Farrell, did not have immunity under either Executive Order No. 7V or the PREP Act. The trial court accordingly denied the motion to dismiss the counts alleging negligence and gross negligence against Farrell.

In SC 20765, the plaintiff appeals from the trial court's judgment insofar as it granted the defendants’ motions to dismiss. In SC 20763 and SC 20764, Farrell and the hospital, respectively, appeal from the denial of their motions to dismiss.⁴

We disagree with the trial court's conclusions only insofar as it determined that the defendants were entitled to immunity under the PREP Act. We therefore reverse the trial court's judgment dismissing counts V, VI, and VII of the complaint. We affirm the judgment in all other respects.

The following facts are taken primarily from the allegations in the complaint, supplemented by certain additional facts contained in affidavits submitted by the parties in connection with the motions to dismiss. See, e.g., Carpenter v. Daar , 346 Conn. 80, 97–99 n.12, 287 A.3d 1027 (2023). On the morning of March 21, 2020, the decedent, who worked as a registrar in the emergency room at Backus Hospital (Backus) in Norwich, went to the Backus emergency room complaining of having a sore throat and a headache for the past few days.⁵ She informed the staff about her medical history, including the fact that she had a heart murmur and needed a heart valve replacement. She denied feeling any pain in her chest, arm or back, or any shortness of breath at rest. In light of concerning indications on her cardiac monitor, Backus staff had the decedent undergo an electrocardiogram at approximately 12:08 p.m. That test showed rapid atrial fibrillation and an "ST elevation." Theresa Adams, an emergency medicine physician at Backus, suspected that the decedent was experiencing an "ST elevation myocardial infarction" (STEMI) or, in common parlance, a heart attack.

A patient suffering from an acute STEMI should receive coronary intervention in a cardiac catheterization lab,⁶ ideally within ninety minutes. Because Backus did not have the facilities to provide cardiac catheterization, Adams called the hospital, where such facilities are available for both diagnostic and interventional purposes, to arrange for the decedent's transfer.

The hospital had recently modified its protocols due to concerns relating to the spread of COVID-19. One such modification directed health care providers to "avoid admitting patients who were suspected of having COVID-19 to [the hospital's] cardiac catheterization lab ... until they had tested negative, unless their physical symptoms dictated the need for emergency catheterization ."⁷ (Emphasis added.) The purpose of the modified protocol was to prevent the spread of COVID-19 to other patients and staff and to conserve supplies of personal protective equipment.

At approximately 12:12 p.m., Adams spoke to Rizvi, the interventional cardiologist on call in the hospital's catheterization lab. In light of the notable absence of cardiac symptoms in the decedent's presentation, her medical history, and her high risk of exposure to COVID-19 based on her employment in a hospital emergency room, Rizvi opined that the decedent did not meet the criteria for transfer to the catheterization lab. Rizvi expressed concern that the decedent could have COVID-19 and doubted that she was suffering from a STEMI. Rizvi recommended that the decedent be transferred to the hospital's emergency room.

Before her transfer from Backus to the hospital at approximately 1:14 p.m., the decedent's troponin levels⁸ reached 8.6 nanograms per milliliter, and Backus emergency department staff believed that the decedent was critically ill with a high probability of imminent or life-threatening deterioration. Updated medical information was electronically relayed to Rizvi.

After the decedent's transfer to the hospital, Rizvi examined her and continued to suspect that she was suffering from a COVID-19 induced condition. Rizvi was aware that patients suffering from certain viruses, including COVID-19, could present with an ST elevation and abnormal troponin levels as the result of virus induced myocarditis or myopericarditis, which are non-life-threatening cardiac inflammatory conditions. Rizvi developed a plan for the decedent's treatment, pursuant to which she would be tested for COVID-19, remain in isolation pending receipt of the test result, and undergo an echocardiogram. At approximately 3:27 p.m., Rizvi recommended that admission to the catheterization lab be deferred until COVID-19 could be ruled out.

Hospital staff administered a COVID-19 test to the decedent at approximately 5:18 p.m. on March 21, 2020. It was sent to a state laboratory for processing, which, at that time, took several days.

Over the next two days, March 22 and 23, 2020, Ferraro-Borgida, Duncan, and Farrell, also cardiologists working at the hospital, became involved in the care of the decedent. Each agreed with Rizvi's recommendation to defer the decedent's transfer to the catheterization lab pending receipt of her COVID-19 test because her history and current presentation indicated to them that she most likely was suffering from COVID-19 related myocarditis. Ferraro-Borgida noted in the decedent's chart that she was not suffering from chest pain but from a sore throat and headache. Ferraro-Borgida also noted that the decedent would need a "full [echocardiogram ] for evaluation of valves and cardiac [catheterization ] to assess coronary anatomy." Duncan later noted that the decedent "had absolutely no chest symptoms" and that her symptoms were "most consistent with myocarditis." He further noted that they were "[w]aiting for [COVID-19] testing to become negative but [did] suggest cardiac catheterization before hospital discharge."...