The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KIMBERLY SKIPPER-BAINES, Personal FOR PUBLICATION
Representative of the ESTATE OF HENRY August 22, 2024
HENDERSON, 9:20 a.m.
Plaintiff-Appellant,
v No. 365137
Genesee Circuit Court
BOARD OF HOSPITAL MANAGERS FOR THE LC No. 22-118065-NH
CITY OF FLINT, doing business as HURLEY
MEDICAL CENTER,
Defendant-Appellee.
Before: MALDONADO, P.J., and M.J. KELLY and RICK, JJ.
MALDONADO, P.J.
Plaintiff, Kimberly Skipper-Baines, as personal representative of the Estate of Henry
Henderson, appeals by delayed leave granted1 the trial court’s order granting summary disposition
in favor of defendant pursuant to MCR 2.116(C)(7) (immunity). We reverse.
I. BACKGROUND
In April 2020, the 91-year-old decedent was admitted to the Hurley Medical Center after
being found unresponsive by his granddaughter. Defendant placed the decedent in a room that he
shared with a mentally unstable roommate who had a known propensity for violent outbursts. Due
to his violent proclivities, the roommate had a staff member assigned to be his “sitter” at all times.
Testing revealed that the decedent was suffering from gallbladder disease, and he underwent a
minor surgical procedure to temporarily treat the issue. Following the procedure, he was returned
to the room that he shared with the roommate so that he could rest. The roommate, while walking
1
Estate of Henderson v Bd of Hosp Managers for the City of Flint, unpublished order of the Court
of Appeals, entered August 18, 2023 (Docket No. 365137) (Mappis Event 12).
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to the bathroom, attacked the decedent with an IV pole. Hospital staff intervened but not before
the roommate inflicted serious harm, and the decedent was left nonresponsive. Trauma surgeons
on staff attempted to repair the decedent’s injuries, but over the coming days, he continued to
decline and ultimately died. The decedent contracted COVID-19 at some point after being
admitted, and a forensic autopsy report provided that the cause of death was “COVID-19
associated pneumonia and complications thereof complicated by hypertensive and atherosclerotic
cardiovascular disease.”
Plaintiff, on behalf of the decedent’s estate, brought claims for medical malpractice and
ordinary negligence arising from the acts and omissions of defendant that made it possible for the
decedent to be assaulted by his roommate. Generally, plaintiff asserted that the decedent should
not have been placed in a room with a mentally unstable person known to be violent and that
defendant’s staff should have been better equipped to intervene in the event of a violent outburst.
Plaintiff asserted that the assault was, at minimum, an important factor in bringing about the
decedent’s death. Defendant moved for summary disposition, arguing that a statute enacted and
executive order issued in response to the pandemic immunized it from any liability. The trial court
agreed and thus granted summary disposition pursuant to MCR 2.116(C)(7).
This appeal followed.
II. DISCUSSION
Plaintiff argues that the trial court erred by deeming defendant immune from litigation
because plaintiff’s claims do not arise from services that defendant provided in support of the
state’s response to the pandemic. We agree.
“This Court reviews de novo a trial court’s decision on a motion for summary disposition,
as well as questions of statutory interpretation and the construction and application of court rules.”
Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). A motion is properly
granted pursuant to MCR 2.116(C)(7) when “[e]ntry of judgment, dismissal of the action, or other
relief is appropriate because of . . . immunity granted by law . . . .”
The moving party may support its motion for summary disposition under MCR
2.116(C)(7) with affidavits, depositions, admissions, or other documentary
evidence, the substance of which would be admissible at trial. The contents of the
complaint are accepted as true unless contradicted by the evidence provided.
[Latits, 298 Mich App at 113 (quotation marks and citation omitted).]
“All matters of statutory interpretation begin with an examination of the language of the
statute.” McQueer v Perfect Fence Co, 502 Mich 276, 286; 917 NW2d 584 (2018). If a statute is
unambiguous, it “must be applied as written.” Id. (quotation marks and citation omitted). This
Court may not read something into the statute “that is not within the manifest intent of the
Legislature as derived from the words of the statute itself.” Id. (quotation marks and citation
omitted). Furthermore, statutory language “cannot be viewed in isolation, but must be construed
in accordance with the surrounding text and the statutory scheme.” Id. (quotation marks and
citation omitted). “Courts must give effect to every word, phrase, and clause in a statute and avoid
an interpretation that would render any part of the statute surplusage or nugatory.” State Farm
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Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). Courts “give
undefined statutory terms their plain and ordinary meanings.” Id. Executive orders are generally
subject to the same rules of interpretation as statutes.
Decisive in this case is section 5 of the Pandemic Health Care Immunity Act, MCL
691.1471 et seq., which provides:
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.]
Similarly, Executive Order No. 2020-30, which has been rescinded but was effective at all relevant
times, provided in relevant part:
[A]ny licensed health care professional or designated health care facility that
provides medical services in support of this state’s response to the COVID-19
pandemic is not liable for an injury sustained by a person by reason of those
services, regardless of how or under what circumstances or by what cause those
injuries are sustained, unless it is established that such injury or death was caused
by the gross negligence . . . of such health care professional or designated health
care facility.
The services that allegedly caused the injury in this case were not given “in support of this
state’s response to the” pandemic. This lawsuit stems entirely from the beating inflicted upon the
decedent by his roommate. The record suggests that the decedent did not contract COVID-19 until
after he was hospitalized due to an unrelated illness, and at the time of the attack, he was recovering
from a gallbladder procedure. The roommate was likewise not being treated for COVID-19, and
there is no suggestion that COVID-19 in some way spurred the attack. The alleged negligent act
was placing him in a room with an unsafe roommate, and the alleged omission was failing to
deploy adequate safeguards to protect the decedent from the roommate whom was known to be
unsafe. It is clear to us that neither of those were done in support of the pandemic response. There
certainly will be gray area with respect to whether medical services were offered in support of the
state’s pandemic response, but this particular case is black and white. The alleged acts, omissions,
and injuries were wholly unrelated to the pandemic, so deeming defendant immune would
contravene the Legislature’s clearly-communicated intent to limit this immunization to services
stemming from the pandemic. The fact that the decedent apparently contracted COVID-19 at some
point following his admission does not change the fact that he was not being treated at the hospital
for COVID-19 or that the incident giving rise to this litigation was completely separate.
The trial court said, “[T]hat [the decedent] was not treated there initially for COVID-19
and in fact his injuries that led to his death were not COVID-19 related is of little import with
regard to the interpretation of the statute.” This statement directly contravenes the statute’s plain
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language. If this interpretation were adopted, it is difficult to imagine any scenario in which a
medical malpractice suit arising from acts and omissions occurring during the COVID-19
emergency could proceed. The Legislature and the Governor would not have limited the immunity
conferred pursuant to this statute to services supporting the pandemic response if it actually
intended for all medical providers to be immune from all liability short of gross negligence. The
court is correct that the statute and executive order do not state that “the patient has to be a COVID-
19 patient or that the treatment has to be related specifically to COVID-19,” but these authorities
do limit the immunity to services offered in response to COVID-19. The trial court’s interpretation
would render the limiting language nugatory, which we are not permitted to do. State Farm, 466
Mich at 146.
We do not hold that immunity only applies when a patient is being treated for COVID-19,
but it is clear that there must be some connection. For example, if an unrelated emergency was
not timely dealt with because hospital staff were overwhelmed with COVID-19 patients, there
might be immunity. If a hospital ran out of ventilators, there might be immunity for cases
involving patients who needed ventilators for unrelated ailments. However, in this case, there was
absolutely no connection between the alleged malpractice and the pandemic. Therefore, there is
no immunity. Defendant notes that the decedent could not be transferred to the University of
Michigan for an eye surgery following the attack because the pandemic left this facility
overcrowded. However, the claims of negligence and malpractice arise from the acts and
omissions leading to the attack, not from alleged shortcomings in treatment. Defendants further
argue that “any claim of improper treatment for COVID-19 to prevent the patient’s death would
be covered” by the immunity, but this is not plaintiff’s claim. Whether COVID-19 was the true
cause of death is a question of fact, and even if COVID-19 was the ultimate cause of death,
defendant could still be liable for any damages arising specifically from the assault.
Our holding today is consistent with this Court’s recent holding in Warran v McLaren
Flint, ___ Mich App ___; ___ NW3d ___ (2024) (Docket No. 366266). In that case, this Court
held that the statute and EO were not limited to care specifically treating COVID-19, but it did not
hold that all hospitals that treated COVID-19 were immune from all malpractice actions not
premised on gross negligence. Id. at ___; slip op at 9. In that case, the plaintiff’s claim arose from
pressure ulcers that he developed while being treated by the defendant for COVID-19, and “[h]e
alleged that during that time he developed additional pressure ulcers and minimal nursing
intervention occurred to treat and prevent the formation of those pressure ulcers. Id. at ___, ___;
slip op at 2, 9. This Court explained:
Plaintiff alleged that he developed multiple pressure ulcers in defendant’s care.
Those injuries were a consequence of the care defendant provided in response to
COVID-19. Stated otherwise, those injuries were sustained by reason of the
healthcare services provided by defendant in support of the state’s response to the
COVID-19 pandemic. Plaintiff presented at the hospital with signs of COVID-19,
was admitted to the COVID-19 floor for COVID-19 treatment, and allegedly
developed pressure ulcers as a result of that care. Such a sequence of events is
covered by the plain language of the statute. [Id. at ___; slip op at 9-10.]
Consistent with our discussion above, this Court held in Warren that the statute and EO conferred
broad immunity that reached far beyond the direct treatment of COVID-19. Indeed, as noted in
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Warren, this immunity could even stretch to cover injuries arising from the redirection of “hospital
resources to fighting the COVID-19 pandemic . . . .” Id. at ___; slip op at 8. However, this Court
did not accept plaintiff’s invitation to render nugatory any of the statutory language. In the present
case, there is simply no connection between the pandemic and the alleged negligence/malpractice.
In Warren, this Court reached a different outcome because, unlike this case, there was a clear
connection between the pandemic and the services giving rise to the cause of action. Therefore,
there was immunity in Warren but there is no immunity here.
III. CONCLUSION
The trial court’s order granting summary disposition in favor of defendant is reversed. This
case is remanded for additional proceedings consistent with this opinion. Because this conclusion
resolves the appeal, we need not address plaintiffs’ alternative bases for reversal. We do not retain
jurisdiction. Plaintiff, being the prevailing party, may tax costs. MCR 7.219(A).
/s/ Allie Greenleaf Maldonado
/s/ Michael J. Kelly
/s/ Michelle M. Rick
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