On March 6, 2020, Indiana Governor Eric Holcomb issued Executive Order 20-02 which declared a public health emergency in the State of Indiana resulting from the outbreak of the Coronavirus Disease 2019 (“COVID-19”). Executive Order 20-02[1] was issued pursuant to the Governor’s authority under Indiana’s Emergency Management and Disaster Law (the “EMDL”). Ind. Code ch. 10-14-3 et seq. Pursuant to the authority granted to the Governor under the EMDL, subsequent Orders were issued which temporarily prohibited evictions and foreclosures (Executive Order 20-06), rescheduled Indiana’s primary elections (Executive Order 20-07) and directed Hoosiers to “Stay at Home” (Executive Order 20-08). In addition to these Orders, Governor Holcomb’s declaration of a public health emergency under the EMDL also triggered potential immunity for health-care providers who are providing health-care services in response to the COVID-19 emergency. This article will explore the immunity provisions triggered by EMDL and address how those provisions may apply to health-care facilities and individuals.

Immunity for Health-Care Providers Triggered by the EMDL

The EMDL was established to “protect the public peace, health, and safety and to preserve the lives and property of the people of the state”.  I.C. 10-14-3-7. The EMDL confers wide-ranging authority and powers to the governor, including the authority to “declare a disaster emergency by executive order or proclamation if the governor determines that a disaster has occurred or that the occurrence or the threat of a disaster is imminent.” [2] The state of emergency can only last for thirty (30) days unless the governor renews the declaration and will expire when the governor determines that the threat or danger has passed and he terminates emergency by executive order or proclamation.  I.C. § 10-13-3-12(a).[3]

In addition to the powers explicitly granted under the EMDL, the declaration of a disaster emergency by the governor triggered certain immunity provisions under Title 34 Article 30 of the Indiana Code. Specifically, Ind. Code § 34-30-13.5-1 provides immunity to health-care providers when providing health-care services in response to the declaration of a disaster emergency. The immunity provisions are directed to both persons and to “facilities” or “locations”.

With respect to persons:

Except as provided in section 2 of this chapter, a person who meets the following criteria may not be held civilly liable for an act or omission relating to the provision of health care services in response to an event that is declared a disaster emergency under IC 10-14-3-12, regardless of whether the provision of health care services occurred before or after the declaration of a disaster emergency:

(1) Has a license to provide health care services under Indiana law or the law of another state.

(2) Provides a health care service:

(A) within the scope of the person’s license to another person; and

(B) at a location where health care services are provided during an event that is declared as a disaster.

I.C. § 34-30-13.5-1

However, immunity for individuals under Section 1 is not total; Section 2 carves out exceptions for gross negligence or willful misconduct:

I.C. § 34-30-13.5-2

A person described in this chapter is not immune from civil liability if the damages resulting from the act or omission relating to the provision of the health care services resulted from the person’s gross negligence or willful misconduct.

Notably, Section 3 provides immunity to facilities or locations — but does not carve out an exception for gross negligence or willful misconduct:

A facility or other location that is providing health care services in response to an event that is declared as a disaster emergency may not be held civilly liable for an act or omission relating to the provision of health care services in response to that event by a health professional licensed to provide the health care service under Indiana law or the law of another state if the person is acting during an event that is declared as a disaster emergency, regardless of whether the provision of health care services occurred before or after the declaration of a disaster emergency.

I.C. § 34-30-13.5-2

Thus, based upon the above statutory provisions, when a health-care provider is providing health-care services in “response” to the COVID-19 public health emergency, a “facility” or “location” will receive total immunity; however, an individual can only assert a claim of immunity if their actions did not amount to “gross negligence” or “willful misconduct”.

Establishing Gross Negligence or Willful Misconduct Under Indiana Law

In Indiana, when a claim of negligence or “medical malpractice” is brought against a health-care provider, Plaintiff must establish that the health-care provider’s actions fell below the standard of care. The standard of care requires a health-care provider to use “the degree of care and skill that a reasonably, careful, skillful, and prudent health-care provider would use under the same or similar circumstances.” Ind. Model Civ. Jury Inst. 1511. However, if the immunity provisions of Ind. Code § 34-30-13.5 apply to the conduct in question, a Plaintiff cannot simply establish that the health-care provider failed to act “reasonably”, instead in order to succeed on her claim, the Plaintiff must establish that the health-care provider’s actions amounted to Gross Negligence or Willful Misconduct. While no Indiana cases could be found that exams a health-care provider’s actions in the context of a breach of duty resulting from Gross Negligence or Willful Misconduct, an examination of these standards can be found in claims addressing ordinary negligence.

Indiana defines Gross Negligence as “a voluntary act or failure to act done with reckless disregard of the consequences to another person.”  Ind. Model Civ. Jury Inst. 914.  While no Indiana appellate court has yet to address an allegation of “gross negligence” to a healthcare provider, in general, in order to establish a claim for gross negligence a Plaintiff cannot merely show that a defendant failed to exercise her duty of care.  Instead, for gross negligence, a plaintiff must show that the in failing the exercise her duty of care, the defendant “breached its duty … by engaging in a conscious, voluntary act or omission in reckless disregard of the consequences to” the plaintiff.  N. Indiana Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465–66 (Ind. 2003).

In Indiana, “Willful” or “wanton” misconduct, involves a similar conscious and reckless disregard for the consequences of the Defendant’s actions.  For a Plaintiff to succeed on a claim for “Willful Misconduct” the Plaintiff must prove “an intentional act or failure to act done with reckless disregard of probable injury to a person, when the defendant knew of that probability and, if the defendant failed to act, he or she had the opportunity to avoid the risk.  Ind. Model Civ. Jury Inst. 913.  Wanton or willful conduct consists of either: (1) an intentional act done with reckless disregard of the natural and probable consequence of injury to a known person under the circumstances known to the actor at the time; or (2) an omission or failure to act when the actor has actual knowledge of the natural and probable consequence of injury and has opportunity to avoid that risk. Taylor v. Duke, 713 N.E.2d 877, 882 (Ind. Ct. App. 1999); Witham v. Norfolk and Western Railway Company, 561 N.E.2d 484, 486 (Ind.1990), reh’g denied; Nesvig v. Town of Porter, 668 N.E.2d 1276, 1283 (Ind.Ct.App.1996).   Two elements are needed to establish this conduct: (1) the defendant’s knowledge of an impending danger or consciousness of misconduct calculated to result in probable injury; and (2) the defendant’s conduct must have exhibited an indifference to the consequences of the act. Witham at 486; Nesvig at 1283.  In the context of premises liability law, one court has defined willful or wanton misconduct as “so grossly deviant from everyday standards that the licensee or trespasser cannot be expected to anticipate it.”  Harper v. Kampschaefer, 549 N.E.2d 1067, 1070 (Ind.Ct.App.1990), trans. denied.    Willfulness cannot exist without purpose or design.  Koop v. Bailey, 502 N.E.2d 116, 118 (Ind.Ct.App.1986).

Malpractice Claims Against Health-Care Providers During the COVID-19 Crisis

Medical Malpractice litigation is almost certain to arise as a result of the ongoing COVID-19 crisis. While health-care providers will attempt to establish that the immunity provisions of Ind. Code § 34-30-13.5-1 apply, Plaintiffs will seek to remove a claim from these immunity provisions by arguing that the care in question was not provided “in response” to the declared heath-care emergency. This could become a particular point of contention in wrongful death claim where the primary cause of death is not declared to be COVID-19 but where COVID-19 was determined to be a contributing cause of death. Likewise, while there appears to be absolute immunity for “facilities” and “locations”, a Plaintiff can still bring forth a claim against individual health-care providers if they can show the individual acted with gross negligence or willful misconduct. Thus, cases normally brought only against certain facilities such as hospitals or nursing homes may instead now be brought against the individual providers within those facilities to avoid the facilities’ defense of absolute immunity.

[1] A list of all Executive Orders issued by the Governor can be found at: https://www.in.gov/gov/2384.htm.

[2] The EMDL sets forth the specific definition of disaster which includes a disaster due to the existence of a “public health emergency”.  I.C. § 10-14-3-1(23).

[3] At the time of this publication, the emergency declaration from Gov Holcomb has been extended through July 4, 2020. (Executive Order 20-30).

© Riley Bennett Egloff LLP

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Posted on Jun. 17 2020 , by Robert C. Brandt