The family of a patient at McLaren Macomb has alleged that in April 2020, the staff at McLaren Macomb allowed their loved one, who was a high fall-risk patient, to shower without the assistance or assistive devices that he required for his safety. The family alleges that as a result, the patient fell and suffered blunt force head trauma that caused his death only 36 hours later. The patient’s family filed a lawsuit against McLaren Macomb. In response, McLaren Macomb tried to avoid liability for its negligence by asking the court to grant it immunity under the Pandemic Health Care Immunity Act.

The injured patient, John Rogers, was not only at high risk for falls, but he was also at high risk for injury in the event of a fall because he was actively taking blood thinners. As a result, he required assistance and an ambulatory device to keep him safe. Rather than providing Mr. Rogers with the assistance and ambulatory device he needed to safely shower, or simply asking Mr. Rogers to wait to shower, the family alleges that the hospital told Mr. Rogers that it was okay to shower in a wet, slippery environment, all alone. Unsurprisingly, while in the shower, Mr. Rogers had a fall and struck his head with such force that he sustained a massive subdural hematoma with intracranial hemorrhage. An emergent craniotomy evacuation could not save his life.

The Pandemic Health Care Act provides that:

A health care provider or health care facility that provides health care services in support of this state’s response to the COVID-19 pandemic is not liable for an injury, including death, sustained by an individual by reason of those services, regardless of how, under what circumstances, or by what cause those injuries are sustained, unless it is established that the provision of the services constituted willful misconduct, gross negligence, intentional and willful criminal misconduct, or intentional infliction of harm by the health care provider or health care facility. MCL § 691.1475.

McLaren Macomb filed a motion with the court and argued that it should be granted immunity under the Pandemic Health Care Act, regardless of the cause of Mr. Rogers’ injury and despite the fact that Mr. Rogers did not have COVID.

Attorneys Donna Mackenzie and Lauren Walson argued that immunity under the Pandemic Health Care Act only applies where an individual is injured by reason of health care services in support of the state’s response to the COVID-19 pandemic. MacKenzie and Walson pointed out that Mr. Rogers was injured by reason of the staff’s neglect in allowing him to shower without assistance or in failing to instruct him to wait to shower until assistance could be provided, not by reason of health care services in support of the state’s response to the COVID-19 pandemic. Safely showering a patient – who is not COVID-positive – is not a health care service related to COVID-19. MacKenzie and Walson also argued that at the time of the incident, the hospital was not providing any services to Mr. Rogers at all, as the allegations relate to omissions, i.e. failure to assist him or provide him with assistive devices, as opposed to affirmative acts. A “service” – by definition – cannot be an omission. MacKenzie and Walson argued that the plain language of the Act does not protect McLaren Macomb from being held accountable for its neglect of Mr. Rogers.

The Macomb County Circuit Court denied McLaren Macomb’s request to dismiss Mr. Rogers’ case. The court ruled that the Pandemic Health Care Immunity Act does not provide blanket immunity. The court also ruled that there was no evidence that Mr. Rogers’ injuries were caused by reason of health care services in support of the state’s response to the COVID-19 pandemic. As a result, Mr. Rogers’ family will have the opportunity to present their case to a jury to decide whether McLaren Macomb should be held accountable.