# 20241218_C365559_38_365559.Opn.Pdf

> Michigan Court of Appeals · December 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10763290

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** December 18, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

CYNTHIA ANDERSON, UNPUBLISHED
December 18, 2024
Plaintiff-Appellee, 9:10 AM

v No. 365559
Oakland Circuit Court
ASCENSION PROVIDENCE HOSPITAL, doing LC No. 2022-197395-NH
business as ASCENSION PROVIDENCE
HOSPITAL SOUTHFIELD CAMPUS,

Defendant-Appellant.

Before: O’BRIEN, P.J., and MURRAY and PATEL, JJ.

PER CURIAM.

In this negligence and medical malpractice action, defendant appeals by leave granted1 the
trial court order denying defendant’s motion for summary disposition under MCR 2.116(C)(7),
(C)(8), and (C)(10). Defendant argues that it is entitled to immunity under Michigan’s Pandemic
Health Care Immunity Act (PHCIA), MCL 691.1471 et seq. and the federal Public Readiness and
Emergency Preparedness Act (PREP Act), 42 USC 247d-6d. Accepting the facts stated in
plaintiff’s complaint as true, we conclude that defendant is not entitled to immunity under the
PREP Act, but MCL 691.1475 is applicable to plaintiff’s claims because her injuries were
allegedly sustained while defendant was providing “healthcare services that assisted, helped, or
promoted the state’s reactions and actions taken as a result of the COVID-19 pandemic.” See
Warren v Flint, __ Mich App __, __; __ NW3d __ (2024) (Docket No. 366226); slip op at 8.
However, on remand, we direct the trial court to consider plaintiff’s request for leave to amend her
complaint to plead an exception to immunity. For the reasons stated in this opinion, we reverse
and remand for further proceedings.

1
Anderson v Ascension Providence Hosp, unpublished order of the Court of Appeals, issued
September 21, 2023 (Docket No. 365559).

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I. BACKGROUND

On May 18, 2020, plaintiff presented to defendant’s emergency room “due to concern for
a possible suicide attempt.” According to the allegations in plaintiff’s complaint, on admission to
the emergency department, she “stated she occasionally felt depressed due to chronic pain and the
stress of being quarantined because of the Covid-19 pandemic.” She also “stated that she was
afraid to leave her house amidst the ongoing pandemic.” A Hendrich II Fall Risk evaluation was
performed, which reflected that plaintiff was a high risk for falls. Plaintiff was also screened and
tested for COVID-19; plaintiff tested negative and had no COVID-19 symptoms.

Three days later, plaintiff was admitted to the behavioral unit for observation. While
plaintiff was in the unit, she took a shower unattended. Plaintiff was found sitting on the shower
floor complaining of intense pain in the left knee. Diagnostic testing revealed a displaced lateral
tibial plateau fracture and a nondisplaced fracture of the fibular head in the left knee. Plaintiff
underwent surgical repair of the fractures and a lengthy rehabilitation.

Plaintiff filed a two-count complaint against defendant asserting claims for medical
malpractice and ordinary negligence. Plaintiff alleged that defendant, through its staff, breached
the standard of care, including its duty to provide adequate protection and supervision to plaintiff,
who presented a high risk of falling, thereby directly and proximately causing her to suffer a
preventable fall that resulted in serious injuries and damages. Plaintiff attached an affidavit of
merit from a registered nurse to her complaint. The affidavit listed defendant’s and its nursing
staff’s deviations from the applicable standard of care, which the affiant opined resulted in
plaintiff’s injuries and damages.

Shortly after filing its answer and affirmative defenses, defendant moved for summary
disposition under MCR 2.116(C)(7), (C)(8), and (C)(10). Defendant argued that plaintiff’s claims
were barred on the basis of immunity under MCL 691.1475 because defendant is a healthcare
facility that provided services in support of Michigan’s COVID-19 pandemic response and
plaintiff suffered injuries as a result of defendant’s services during the applicable timeframe.
Defendant additionally argued that it was immune from liability under the federal PREP Act
because plaintiff’s claims arose out of a “covered countermeasure.” Specifically, defendant
contended that, because defendant was a “covered person” within the meaning of the act, and
because defendant’s nursing staff was using protective measures to prevent the spread of COVID-
19 (a covered countermeasure), defendant was immune under the act.

Plaintiff asserted that defendant was not entitled to immunity under MCL 691.1475
because plaintiff’s injuries, care, and treatment did not arise while defendant treated her for
COVID-19. Plaintiff likewise asserted that the PREP Act did not apply because plaintiff’s injuries
were not caused by a “covered countermeasure,” i.e., COVID-19 treatments or services.
Alternatively, plaintiff argued that she should be given the opportunity to amend her complaint to
include allegations and facts supporting a claim for gross negligence, which is an exception to the
immunity provided by MCL 691.1475.

The trial court dispensed with oral argument under MCR 2.119(E)(3), and entered an
opinion and order denying defendant’s motion for summary disposition. The court construed MCL
691.1475 as limiting immunity to healthcare services rendered to patients related to COVID-19

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within the relevant timeframe. Because plaintiff presented to defendant’s emergency room without
COVID-19 symptoms, tested negative for COVID-19, and fell while unassisted in the shower, the
court concluded that plaintiff’s treatment had nothing to do with COVID-19. For these reasons,
the court declined to extend the immunity afforded by MCL 691.1475 to plaintiff’s claims.2 This
appeal followed.

II. STANDARDS OF REVIEW

“We review de novo a trial court’s decision on a motion for summary disposition.” El-
Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Summary
disposition under MCR 2.116(C)(7) is proper when a claim is barred because of immunity granted
under the law. Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d 211 (2010). “When
reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-pleaded factual
allegations as true and construe them in favor of the plaintiff, unless other evidence contradicts
them.” Id.

“A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the
factual allegations in the complaint.” El-Khalil, 504 Mich at 159 (emphasis omitted). A court
must accept all factual allegations as true and review the matter on the pleadings alone. Id. at 160.
The grant of a motion under MCR 2.116(C)(8) is only appropriate “when a claim is so clearly
unenforceable that no factual development could possibly justify recovery.” Id.

Summary disposition under MCR 2.116(C)(10) is warranted when “[e]xcept as to the
amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” MCR 2.116(C)(10). When reviewing
a motion for summary disposition under MCR 2.116(C)(10), we must consider the evidence
submitted by the parties in the light most favorable to the nonmoving party. El-Khalil, 504 Mich
at 160. “A genuine issue of material fact exists when the record leaves open an issue upon which
reasonable minds might differ.” Id. (cleaned up).

We also review de novo issues of statutory interpretation. Drob v SEK 15, Inc, 334 Mich
App 607, 617; 965 NW2d 683 (2020). “The principal goal of statutory interpretation is to give
effect to the Legislature’s intent, and the most reliable evidence of that intent is the plain language
of the statute.” South Dearborn Environmental Improvement Ass’n, Inc v Dep’t of Environmental
Quality, 502 Mich 349, 360-361; 917 NW2d 603 (2018). “We accord to every word or phrase of
a statute its plain and ordinary meaning, unless a term has a special, technical meaning or is defined
in the statute.” Guardian Environmental Servs, Inc v Bureau of Const Codes and Fire Safety, 279
Mich App 1, 6; 755 NW2d 556 (2008). “Where the statutory language is unambiguous, the plain
meaning reflects the Legislature’s intent and the statute must be applied as written.” Honigman
Miller Schwartz & Cohn LLP v City of Detroit, 505 Mich 284, 294; 952 NW2d 358 (2020) (cleaned
up). If a statutory term is undefined, it “must be accorded its plain and ordinary meaning[;]” but
a legal term of art “must be construed in accordance with its peculiar and appropriate legal

2
The trial court did not address the application of the PREP Act to plaintiff’s claims or plaintiff’s
request for leave to amend her complaint to plead an exception to immunity.

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meaning.” Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d 207 (2008), citing MCL
8.3a.

III. IMMUNITY UNDER MCL 691.1475

Defendant first contends that it is immune from liability under MCL 691.1475. We agree
that MCL 691.1475 is applicable to the care that defendant provided to plaintiff. However, on
remand, we direct the trial court to consider plaintiff’s request for leave to amend her complaint to
plead an exception to immunity.

MCL 691.1475 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. [Emphasis added.]

The immunity from liability provided by MCL 691.1475 “applies retroactively, and applies on or
after March 29, 2020 and before July 14, 2020.” MCL 691.1477.

In this case, there is no dispute that the acts or omissions that form the basis of plaintiff’s
negligence and medical malpractice claims occurred during the statutory timeframe. There is also
no dispute that defendant is a healthcare facility that provided healthcare services in support of
Michigan’s response to the COVID-19 pandemic. Instead, the controversy centers on whether
plaintiff’s injury was “by reason of” healthcare services in support of the state’s response to the
Covid-19 pandemic, regardless of how or by what cause the injury was sustained. Defendant
argues that immunity is not limited to those injuries caused by COVID-19 treatment, whereas
plaintiff contends that immunity is limited to when a person suffers an injury actually caused by
COVID-19 services provided to that person.

A panel of this Court recently concluded that the immunity conferred by MCL 691.1477 is
not limited to when a patient is being treated for COVID-19. Warren, ___ Mich App at ___; slip
op at 8. The Warren Court construed the phrase “health care services in support of this state’s
COVID-19 pandemic” to encompass “healthcare services that assisted, helped, or promoted the
state’s reactions and actions taken as a result of the COVID-19 pandemic[,]” including services
given “to those infected with COVID-19 and regular healthcare services provided during the
statutory period.” Id. at __; slip op at 8 (emphasis added). In other words, “the immunity provision
in MCL 691.1475 . . . cover[s] both regular medical care and medical treatment specific to
COVID-19.” Id. at __; slip op at 8.

The plaintiff in Warren sought treatment from the defendant hospital for shortness of
breath. Id. at ___; slip op at 1. He was admitted to the COVID-19 floor, was intubated, and later
tested positive for COVID-19. Id. at ___; slip op at 1-2. During his stay, the plaintiff developed
pressure ulcers allegedly resulting from the defendant’s failure to assess his risk of such sores,

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reposition him to prevent their development, and provide appropriate treatment. Id. at ___; slip op
at 2. Although the cause of plaintiff’s injury was allegedly the failure to guard against pressure
ulcers, not the treatment for COVID-19 per se, this Court concluded that the defendant was entitled
to the immunity afforded under MCL 691.1475, explaining:

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.]

Subsequently, in Skipper-Baines v Bd of Hosp Managers for the City of Flint, ___ Mich
App ___ ; ___ NW2d ___ (2024) (Docket No. 365137); slip op at 4, another panel of this Court
clarified that immunity is not limited to “when a patient is being treated for COVID-19, but it is
clear that there must be some connection.” (Emphasis added). The decedent in Skipper-Baines
underwent a minor surgical procedure to treat gallbladder disease, and, once returned to his room,
he was attacked by his mentally unstable roommate. Id. at ___; slip op at 1-2. The decedent’s
condition declined over the next several days, and he ultimately passed away. Id. at ___; slip op
at 2. At some point during his hospitalization, the decedent contracted COVID-19. Id. at ___; slip
op at 2. The forensic autopsy report stated that COVID-19 associated pneumonia was a
contributing cause of death. Id. at ___; slip op at 2. This Court explained:

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 [sic] was known to be unsafe. It is clear to us that neither of
those were done in support of the pandemic response. [Id. at ___; slip op at 3.]

Because “the claims of negligence and malpractice [arose] from the acts and omissions leading to
the attack, not from the alleged shortcomings in treatment[,]” the panel determined that there was
“absolutely no connection between the alleged malpractice and the pandemic” and thus defendant
was not entitled to immunity under MCL 691.1475. Id. at ___; slip op at 4. In reaching its holding,
the Skipper-Baines panel distinguished Warren on the basis that, in Warren, “there was a clear
connection between the pandemic and the services giving rise to the cause of action,” whereas in
Skipper-Baines “there is simply no connection between the pandemic and the alleged
negligence/malpractice.” Id. at ___; slip op at 5.

-5-
In this case, plaintiff presented to defendant’s emergency room for suicidal ideations
related to depression caused, in part, by the stress of the COVID-19 pandemic. Although plaintiff
tested negative for COVID-19, she sought mental-health treatment for pandemic-related stress that
contributed to her suicide risk, and while in defendant’s care for this purpose, plaintiff suffered a
fall allegedly resulting from defendant’s decision to allow plaintiff to shower unassisted and failure
otherwise to safeguard against fall risks. While the provision of healthcare services related to
COVID-19 was not the direct and proximate cause of plaintiff’s injuries, some connection exists
between the alleged malpractice and the pandemic. See id. at ___; slip op at 4. Similar to the
plaintiff in Warren, and unlike the decedent in Skipper-Baines, plaintiff in this case sought
healthcare services related to the pandemic and was allegedly injured by subsequent acts or
omissions in carrying out that care. Accordingly, we conclude that MCL 691.1475 is applicable
to the healthcare services that defendant provided to plaintiff.

However, plaintiff alternatively argues that she should be granted leave to amend her
complaint to include allegations and facts supporting a claim for gross negligence, which is an
exception to the immunity provided by MCL 691.1475. Plaintiff asserts that defendant’s “at-issue
care/treatment (or lack thereof)” constituted gross negligence. The PHCIA defines “gross
negligence” as “conduct so reckless as to demonstrate a substantial lack of concern for whether an
injury results.” MCL 691.1473(a). Plaintiff contends that defendant’s actions in allowing plaintiff,
a known fall risk, to shower unassisted without any special safeguards demonstrates a substantial
lack of concern for whether an injury would result. Plaintiff raised this alternative argument in
response to defendant’s motion for summary disposition, but because the trial court determine that
defendant was not entitled to immunity, it did not consider plaintiff’s request for leave to amend
her complaint to include a gross negligence claim as an exception to immunity. Accordingly, on
remand, the trial court is directed to consider plaintiff’s request for leave to amend her complaint
to plead a claim of gross negligence as an exception to immunity. We remind the trial court that
“[l]eave [to amend] shall be freely given when justice so requires.” MCR 2.118(A)(2). See also
Michigan Head & Spine Inst, PC v Michigan Assigned Claims Plan, 331 Mich App 262, 277; 951
NW2d 731, 741 (2019) (it is an abuse of discretion to deny leave to amend where amendment
would not be futile and is in the interest of justice); Cole v Ladbroke Racing Mich, Inc, 241 Mich
App 1, 9; 614 NW2d 169 (2000) (holding that leave to amend “ordinarily should be granted in the
absence of any apparent or declared reason, such as undue delay, bad faith, or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of
amendment.”).

IV. IMMUNITY UNDER THE PREP ACT

Defendant also argues that it is entitled to immunity under the PREP Act. We disagree.

The PREP Act was enacted in 2005. It authorizes the Secretary of the United States
Department of Health and Human Services to make “a determination that a disease or other health
condition or other threat to health constitutes a public health emergency, or . . . future . . .
emergency.” 42 USC 247d-6d(b)(1). If such a determination is made, the Secretary “may make
a declaration . . . recommending, under conditions as the Secretary may specify, the manufacture,
testing, development, distribution, administration, or use of one or more covered

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countermeasures.” 42 USC 247d-6d(b)(1). Once the Secretary publishes a declaration, the PREP
Act provides that “a covered person shall be immune from suit and liability under Federal and
State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from
the administration to or the use by an individual of a covered countermeasure . . . .” 42 USC
247d-6d(a)(1) (emphasis added).3 The PREP Act defines “a covered person” as a healthcare
professional that administered the “covered countermeasure.” 42 USC 247d-6d(a)(1),
(i)(2)(B)(iv), (i)(8)(A). A “covered countermeasure” includes “a qualified pandemic or epidemic
product (as defined in [42 USC 247d-6d(i)(7)];” a FDA-approved “drug . . . biological product . . .
or device” that is authorized for emergency use under the Federal Food, Drug, and Cosmetic Act;
and “a respiratory protective device that is approved by the National Institute for Occupational
Safety and Health . . . .” 42 USC 247d-6d(i)(1).

In March 2020, the Secretary issued a declaration under the PREP Act for countermeasures
against COVID-19. See Department of Health and Human Services, Office of the Secretary,
Declaration Under the Public Readiness and Emergency Preparedness Act for Medical
Countermeasures Against COVID-19, Fed Reg 15198, 15202 (March 17, 2020). In terms of
identifying covered countermeasures, the Declaration stated:

Covered Countermeasures are any antiviral, any other drug, any biologic, any
diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent,
or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating
therefrom, or any device used in the administration of any such product, and all
components and constituent materials of any such product. [Id. at 15,202.]

In order for a covered person to have immunity under the PREP Act, there must be a “causal
relationship with the administration to or use by an individual of a covered countermeasure,
including a causal relationship with the design, development, clinical testing or investigation,
manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase,
donation, dispensing, prescribing, administration, licensing, or use of such countermeasure.” 42
USC 247d-6d(a)(2)(B). Additionally, among other conditions, immunity only applies under the
PREP Act if “the countermeasure was administered or used for the category or categories of
diseases, health conditions, or threats to health specified in the declaration[.]” 42 USC 247d-
6d(a)(3)(B). “At the very least, then, for PREP Act immunity to apply, the underlying use or
administration of a covered countermeasure must have played some role in bringing about or
contributing to the plaintiff’s injury. It is not enough that some countermeasure’s use could be
described as relating to the events underpinning the claim in some broad sense.” Hampton v
California, 83 F4th 754, 764–65 (CA 9, 2023). See also Schleider v GVDB Operations, LLC, 121

3
There is an exception to immunity under the PREP Act for injuries “proximately caused by willful
misconduct.” 42 USC 247d-6d(d)(1). The PREP Act defines “willful misconduct” as “an act or
omission that is taken—(i) intentionally to achieve a wrongful purpose; (ii) knowingly without
legal or factual justification; and (iii) in disregard of a known or obvious risk that is so great as to
make it highly probable that the harm will outweigh the benefit.” 42 USC 247d-6d(c)(1). The
PREP Act identifies specific procedures and establishes exclusive federal jurisdiction for willful
misconduct claims. See 42 USC 247d-6d(e).

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F4th 149, 163 (CA 11, 2024) (denying immunity under the PREP Act where the death of the
plaintiff’s decedent was not “caused by,” and did not “aris[e] out of,” or “relat[e] to,” or “result[ ]
from” the “administration to or the use of . . . a covered countermeasure.”); Hudak v Elmcroft of
Sagamore Hills, 58 F4th 845, 857 (CA 6, 2023) (concluding the plaintiff’s claims did not fall
within the PREP Act’s exception to immunity where there were no allegations that the decedent’s
“illness or death was caused by [the defendant’s] distribution or dispersal of countermeasures, but
rather by its failure to use countermeasures or to take appropriate care of him.”).

In this case, even assuming defendant and its staff are “covered persons” within the
meaning of the PREP Act, plaintiff’s injury lacked a causal relationship to the use of a “covered
countermeasure.” Plaintiff alleges that she suffered injury because defendant permitted plaintiff
to take a shower unattended, despite the fact that plaintiff was at high risk of falling, and failed to
put any safeguards in place to prevent her from falling. Defendant argues that its staff was using
protective gear and devices to prevent the spread of COVID-19 while caring for plaintiff and thus
plaintiff’s claims are within the scope of the PREP Act. We disagree. There is absolutely no
causal relationship between a covered countermeasure and plaintiff’s injury. Accordingly,
defendant has not demonstrated that it is entitled to immunity under the PREP Act.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

/s/ Colleen A. O’Brien
/s/ Christopher M. Murray
/s/ Sima G. Patel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10763290. Public record. Not legal advice.