Smith v. Upper Chesapeake Medical Ctr.

James Smith, Jr., et al. v. Upper Chesapeake Medical Center Inc., No. 0927, September

Term, 2024. Opinion by Nazarian, J.

CATASTROPHIC HEALTH EMERGENCY – STATUTORY IMMUNITY –

HEALTHCARE PROVIDERS

Statutory immunity under Md. Code (2003, 2022 Repl. Vol.), § 14-3A-06 of the Public

Safety Article (“PS”) applies to care given by health care providers acting in good faith

under a state-declared emergency proclamation

CATASTROPHIC HEALTH EMERGENCY – STATUTORY IMMUNITY –

HEALTHCARE PROVIDERS

The immunity afforded by PS § 14-3A-06 does not hinge on whether the healthcare

provider treated a patient for an illness caused by the biological agent underlying a health

emergency proclamation. See PS § 14-3A-02. Rather, the General Assembly conditioned

immunity for providers only on actions taken in good faith and in response to the

emergency proclamation.

Circuit Court for Harford County

Case No. C-12-CV-23-000075

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 0927

September Term, 2024

______________________________________

JAMES SMITH, JR., ET AL.

v.

UPPER CHESAPEAKE MEDICAL

CENTER, INC.

______________________________________

Nazarian,

Zic,

Maloney, John M.

(Specially Assigned),

JJ.

______________________________________

Opinion by Nazarian, J.

______________________________________

Filed: May 4, 2026

Pursuant to the Maryland Uniform Electronic Legal

Materials Act (§§ 10-1601 et seq. of the State

Government Article) this document is authentic.

2026.05.04

15:25:35 -04'00'

Gregory Hilton, Clerk

James Smith, Jr. suffered a serious deep tissue injury while hospitalized during April

and May 2020. Before Mr. Smith entered the hospital, Maryland Governor Lawrence

Hogan, Jr. had declared a catastrophic health emergency in Maryland in response to the

global COVID-19 pandemic (“COVID-19,” the “coronavirus”). Mr. Smith’s injury

disabled him permanently, and he and his wife sued the University of Maryland Upper

Chesapeake Medical Center, University of Maryland Upper Chesapeake Health System,

Inc., Upper Chesapeake Medical Center, Inc., and Upper Chesapeake Health System, Inc.

(collectively, “Upper Chesapeake” or the “hospital”) for negligence and loss of consortium.

Upper Chesapeake answered that it had been operating under modified protocols pursuant

to the Governor’s health emergency proclamation during Mr. Smith’s hospitalization and,

therefore, was immune from civil liability pursuant to Md. Code (2003, 2022 Repl. Vol.),

§ 14-3A-06 of the Public Safety Article (“PS”). The material facts were undisputed and,

after a motion, a hearing, supplemental briefing, and a follow-up argument, the Circuit

Court for Harford County agreed and entered summary judgment for the hospital. Mr.

Smith appeals and argues that statutory immunity didn’t apply unless Upper Chesapeake

had treated him for COVID-19, which it hadn’t. We affirm.

I. BACKGROUND

On March 5, 2020, Governor Hogan issued a proclamation, under authority granted

to him in PS § 14-3A-02, that declared a state of emergency and the existence of a

catastrophic health emergency due to COVID-19. A March 16 executive order recognized

that the State needed health care providers “to respond to the . . . emergency, including for

treatment, isolation, and quarantine,” and the Governor ordered interstate reciprocity of

healthcare licenses, authorized inactive healthcare practitioners to resume practice without

first seeking reinstatement, allowed practitioners to act beyond the scope of practice

authorized by their license, activated the Maryland Responds Medical Reserve Corps,

authorized the Maryland Secretary of Health (the “Secretary”) to restrict elective medical

procedures, and relaxed other healthcare practitioner licensing requirements. Md. Exec.

Order (Mar. 16, 2020), https://health.maryland.gov/mbon/Documents/covid-19-executive-

orders/20200316-Gov-Hogan-Executive-Order-Health-Care-Matters.pdf, archived at

https://perma.cc/S8N4-Y84T. The Governor renewed the emergency proclamation on

March 17, April 10, and May 6, 2020.

On March 23, 2020, and in response to the proclamation, the Secretary directed all

hospitals to grant “temporary disaster privileges” to bring on licensed physicians who

weren’t on staff, cease all elective and non-urgent medical procedures and perform “only

medical procedures that [were] critically necessary for the maintenance of health for a

patient,” and implement Centers for Disease Control (“CDC”) guidelines for the strategic

use of Personal Protective Equipment (“PPE”). By May 6, 2020, the State had experienced

at least “27,000 laboratory-confirmed positive COVID-19 cases and nearly 1,300 related

deaths . . . .” But that same day, the Secretary authorized healthcare providers to resume

“elective and non-urgent medical procedures and appointments” (the “Amended Order”)

and advised that immunity under PS § 14-3A-06 wouldn’t apply to providers “performing

non-COVID-19 related procedures or appointments.”

On April 5, 2020, a month after the Governor’s proclamation, Mr. Smith came to

Upper Chesapeake’s emergency room suffering from “[a]cute respiratory failure,” low

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oxygen in his body tissue, and high levels of carbon dioxide in his blood. He presented

with symptoms of “worsening fatigue,” “shortness of breath,” and “intermittent fevers.”

The hospital intubated him, placed him on a ventilator, admitted him into the Intensive

Care Unit (“ICU”), and placed him in isolation with “enhanced droplet [and] contact

precautions” to rule out COVID-19.

Mr. Smith had a fever on April 7 and April 8, and he tested negative for the

coronavirus on April 8. Still suspecting COVID-19 infection, Upper Chesapeake elevated

Mr. Smith’s isolation status to “airborne, droplet, [and] contact precautions” due to “[h]igh

suspicion of active COVID [i]nfection, critically ill or expected need for aerosol generating

procedures requiring highest level of available isolation including [a] negative pressure

room,” and the hospital ordered another COVID test. Mr. Smith tested negative for the

virus again on April 11, 2020, and the hospital lowered his isolation status back to

“enhanced droplet [and] contact precautions,” and he remained subject to those precautions

until April 22, 2020. But he wasn’t getting better—on or around April 13, Upper

Chesapeake diagnosed him with “[b]ilateral pulmonary infiltrates,” “[c]ardiomyopathy,”

and “[a]cute kidney injury” and ordered a palliative care consultation on April 14. After he

showed signs of improvement, the hospital extubated him on April 21, and on April 29, a

final COVID-19 test came back negative.

In the meantime, Mr. Smith remained at high risk for skin breakdown and required

repositioning every two hours. Upper Chesapeake’s medical records indicate that staff

didn’t meet that standard from April 7 to April 14, 2020. On April 14, staff discovered a

deep tissue injury on his sacrum and ordered a wound consultation. He developed an

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infected sacral decubitus ulcer that had become “unstageable” by April 27. The hospital

performed a “[d]ebridement of [his] skin and subcutaneous tissue and muscle” on April 30,

and Upper Chesapeake discharged him from care on May 5, 2020. At discharge, Mr. Smith

continued to have a chronic sacral decubitus ulcer. After numerous debridement and skin

graft procedures, the wound closed in November 2021 and left him permanently disabled.

During the entire period Mr. Smith was in the hospital, Upper Chesapeake was

operating under an Emergency Response Plan in response to the Governor’s emergency

proclamation. As part of that plan, Upper Chesapeake adopted and implemented a

COVID-19 response policy called the “Duration of Transmission-Based Precautions for

Hospitalized Patients with COVID-19 and Persons Under Investigation” (the “isolation

policy”). The isolation policy provided that the hospital would place a Person Under

Investigation (“PUI”) for COVID-19 into “enhanced droplet and contact” isolation status

when a negative pressure room wasn’t available, and staff would don full PPE, including

“gowns, gloves, respirator . . . and eye protection” when administering care. Under the

isolation policy, “airborne/droplet/contact” isolation required full PPE plus a negative

pressure room “for COVID-19 positive [patients], especially [patients who were] critically

ill and/or requir[ed] aerosol generating procedures.” The policy provided further that PUIs

with an initial negative test result should “remain in PUI status and in COVID-19

precautions” if they had an “[a]cute respiratory syndrome or distress of unknown etiology”

or there was “[h]igh suspicion for COVID infection or co-infection based on clinical

presentation and no alternate diagnosis.” The policy directed staff to keep patients in

airborne/droplet/contact isolation status if the patients continued to present “deteriorating

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respiratory status that [would] necessitate positive pressure ventilation/intubation/high

flow oxygen.” Only when those conditions didn’t exist could Upper Chesapeake remove

the PUI indicator from the patient’s chart, discontinue isolation precautions, and move the

patient to standard precautions, which required only face masks and eye protection.

Mr. Smith’s medical records referenced the Emergency Response Plan and

cautioned that “[p]atient care and treatment decisions may be impacted as availability of

resources become affected.” Some of the elements of the plan modified the hospital’s usual

practices relating to isolation and PPE, including respirator requirements for any staff

within six feet of or providing direct care to PUIs like Mr. Smith. Hospital staff testified

that the “extreme circumstances” of working during the pandemic “truncated” their normal

documentation practices and led to increased reliance on PPE, enhanced donning and

doffing practices, and extra precautions. During that time, staff testified that they had

limited PPE, which in turn reduced the number of times that ICU staff could enter and exit

patient rooms, and they described the environment as “chaotic and very busy.” For every

contact- or airborne-isolated patient in the ICU, like Mr. Smith, staff had to put on PPE

before entering one patient’s room, then remove the PPE after leaving that patient’s room

and put on a new set of PPE before visiting the next patient. Staff testified further that not

all the patients in the ICU had COVID-19, but most did.

Mr. Smith sued Upper Chesapeake alleging negligence and loss of consortium as a

result of the deep tissue injury he suffered from the hospital’s alleged failure to reposition

his body. In its answer, the hospital asserted a defense of immunity from civil liability

under PS § 14-3A-06. Later, Upper Chesapeake moved to dismiss Mr. Smith’s complaint

5

or for summary judgment, asserting that immunity attached because the hospital was

operating under its Emergency Response Plan in direct response to the Governor’s

emergency proclamation when it provided medical care to Mr. Smith.

At a hearing on Upper Chesapeake’s motion, the parties agreed that the only issue

in dispute was whether statutory immunity applied to the medical treatment Mr. Smith

received from the hospital and that that was not a jury question. Upper Chesapeake denied

that it sought blanket immunity or that medical malpractice claims could never exist during

a catastrophic health emergency. Instead, the hospital argued that immunity was a

fact-specific inquiry tied to the kind of healthcare provider, the timing of the treatment, and

the impact of the emergency proclamation on normal hospital operations:

THE COURT: Is it your contention, on behalf of the Defense

here, that this immunity statute applied to any providing of any

medical services whatsoever? . . . . That no doctor in the state

of Maryland could commit medical malpractice at all [during

a catastrophic health emergency]?

[COUNSEL FOR DEFENSE]: No. . . . I think it would be

whether the healthcare providers or the healthcare facility was

operating under the state of emergency and catastrophic

emergency proclamation. So, during this time period . . . there

was a cancelation of non-urgent, unnecessary medical

procedures and elective medical treatment. So, during that time

period, certain healthcare providers were not providing care

and treatment. I think though, in the context of this case, which

the care at issue it’s criticizing ICU healthcare providers that

are providing necessary medical treatment—so, I do think that

the initial immunity does apply very specifically to this case,

based on the timing of treatment that’s at issue.

***

I think it’s a little bit more specific of an inquiry. Because

hospitals during this time period were not only—it’s not so

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much as healthcare-provider specific, but also the fact that

these healthcare facilities, the hospitals, were implementing

certain policies and procedures to combat the COVID-19

pandemic.

***

I would agree that certain procedures that have absolutely no

bearing whatsoever on COVID-19, the facility that was

providing the treatment that had nothing to do with COVID-19,

it wasn’t impacting the decisions that are being made to

provide treatment to the patients, then, yes, I would agree that

I don’t think that there’s an immunity that would . . . be

applicable.

Upper Chesapeake argued that its pandemic response affected the treatment of all patients,

including, and most acutely, the sickest patients in its ICU, like Mr. Smith. The hospital

suggested that PS § 14-3A-06 grew out of an understanding that during a catastrophic

health emergency, front-line providers like Upper Chesapeake weren’t expected to perform

to the ordinary standard of care, but rather to a “critical crisis standard of care,” where they

would be “practicing in unprecedented conditions that they’ve never experienced.” Upper

Chesapeake acknowledged that modified protocols pertaining to PPE and documentation

altered the treatment Mr. Smith received from ICU staff.

Mr. Smith conceded that PS § 14-3A-06 applied when he first arrived at the

emergency room because he presented symptoms compatible with COVID-19. But he

argued that any statutory immunity stopped as soon as Upper Chesapeake ruled out

COVID-19 and began to treat his other medical conditions because “at that moment in

time, he ha[d] converted to a non-COVID suspect [receiving] non-COVID treatment.” Mr.

Smith reasoned that because he tested negative for the virus before he developed his deep

7

tissue injury on April 14, the relationship between the injury and a known or potential

COVID-19 diagnosis had become too attenuated from any COVID-19-related deviation

from the standard of care and, therefore, no immunity should apply.

The circuit court considered different scenarios under Mr. Smith’s statutory

construction, for example:

THE COURT: Let’s say [defense counsel] had an affidavit

from the chief physician at Upper Chesapeake that said on the

day that [a] hypothetical individual had gotten in his car

accident and was admitted, and the hospital’s now being sued,

that we only had two nurses on staff ‘cause everybody else was

out on COVID. . . . I think it necessarily involves some

underlying understanding of the circumstances at the time . . . .

***

I mean, if a well-intentioned doctor, who’s running around the

hospital trying to treat 100 different patients that’s doing the

best they can, that is falling below the standard of care but

acting in good faith, [they are] immune. If the circumstances

support it.

***

So, is it your position that [Mr. Smith] comes in, he’s got a—

there’s a veil of immunity that’s sort of floating over him for

[a] period. But then, when a COVID test comes back negative,

one of the first ones or the second one comes back negative,

then the immunity is lifted. . . . So, would then—it would be

odd, right, for immunity to then just evaporate. And then now

the doctors are under a very strict standard of care in trying to

manage his treatment. Help me through this.

At the same time, the court thought it would be tougher for immunity to reach the care of

a patient with no COVID-19 symptoms who sought treatment solely for a non-COVID

issue, purely under a theory of operational impact.

8

The court also considered our unreported decision in Constantine v. Balt. Wash.

Emergency Physicians, No. 2132, Sept. Term 2022 (Md. App. February 28, 2024), the only

appellate decision addressing the reach of statutory immunity under the Governor’s

COVID-19-related emergency proclamation. 1 In that decision, we concluded that statutory

0F

immunity did apply to claims brought by a patient whom the hospital suspected of having

COVID-19 but whose injury arose from a failure to treat the patient’s non-COVID-19

condition. See Section II.A below. Mr. Smith maintained that under Constantine statutory

immunity applies when providers treat a person who has COVID-19 or is suspected of

having it and that there must be “a rational relationship at that moment in time to

COVID-related treatment. Even if it was [a] misdiagnosis.” In his view, his negative

COVID-19 tests created a “clean break,” and without an operational connection between

the virus and his care, he argued, PS § 14-3A-06 wouldn’t apply. Upper Chesapeake

countered that statutory immunity covered the treatment it provided Mr. Smith in April

2020 in the ICU under the circumstances because “[the hospital was] impacted by the

response to COVID-19.”

The circuit court was reluctant to remove context and operational impact from the

analysis altogether. The immunity question, the court reasoned, would depend necessarily

“on the facts and circumstances at the time,” and it drew an analogy to the qualified

1

Under Maryland Rule 1-104(a)(2)(B), parties may cite an unreported decision issued on

or after July 1, 2023 as persuasive authority when there is “no reported authority [that]

adequately addresses an issue before the court.” This is a situation where the citation was

appropriate—Constantine was (until now) the only appellate opinion addressing statutory

immunity under Governor Hogan’s COVID-19 emergency proclamation.

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immunity doctrine for police officers and other public officials, under which courts must

“look at the underlying facts and circumstances of what [the officers] were [facing] at the

time.” The court contemplated how the immunity provision worked when viewed against

the systemic impact of the pandemic on the hospital relative to Mr. Smith’s individual

COVID-19 risk:

THE COURT: What about this: [Upper Chesapeake was]

worried about—what if they were worried about infecting [Mr.

Smith?] Let’s say now that he was ruled out for

COVID . . . and you have your limited staff of nurses scurrying

around—you have COVID patients over there in the hospital.

You have people over here that are having acute care. And you

have Mr. Smith that’s on a level where there’s isolation and

they’re worried about infecting him. And they’re worried about

transmitting him from patient A on the third floor to where he

is on the fourth floor.

And in a situation where they have very, very, very limited

staff and they’re working around the clock and all things,

which, again, must be supported by the record of course. And

then they have to take all these extra measures with every

single patient. With the PPE, they have to take it off, put it on.

So, while [Mr. Smith] has no longer become a COVID concern

himself, they’re worried about infecting him with COVID and

then causing him to die as a result, which is putting a whole

concern on the hospital as a whole. So, it’s stressing the whole,

kind of, organization. What do you say to that?

[COUNSEL FOR MR. SMITH]: . . . At some point, the

immunity cuts off for the hospital. And that sounds harsh. I get

it. And I sense the Court realizes how harsh that is on the

hospital staff and the hospital as an institution. But it’s as—

THE COURT: No, no. I don’t think it’s harsh. I think it’s

exactly the way it’s intended to work. Like, I do think the

immunity does end at some point. I mean, I think that there—

that this is sort of envisioned about in [the Constantine]

opinion a little bit.

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But under the facts of this case, what I’m struggling with is did

that point in time occur. Your argument is of course it did. It

did because he went from being—he personally was no longer

a concern for COVID himself and that the hospital in treating

him for the condition that he had, the kidney condition he had,

was negligent as a result.

I’m just—it’s a little bit kind of too clear for me that he gets a

negative test back in the middle of his stay and, poof, the

immunity goes away. And then the hospital—the nurses are

supposed to just act as business as usual all of a sudden.

After taking a recess, the court returned and shared its initial impressions:

So, in trying to wrap my head around what this concept of

immunity means in this circumstance, taking us back to what

life was like back in April of 2020 . . . I believe that there’s a

very strong case for immunity to apply here upon—certainly

upon Mr. Smith’s admission to the hospital.

***

The concerns of COVID are not eliminated simply by a return

of a negative test. There continues to be a concern, particularly

during that period of time, of a false negative or a patient being

infected himself by other COVID patients that are in the

hospital or by the people that are providing him or her with

medical care.

We also have the issue of the hospital being placed under

enormous pressure that healthcare providers were under during

this really, really challenging period of time. So, there’s been

a lot of discussion about whether or not there is “blanket

immunity” under these circumstances.

I don’t think it works like that. I think it’s a facts and

circumstances inquiry. And that’s supported by some of the

discussion in the Constantine case. . . . I believe it applies to—

it depends on whether or not under the circumstances that not

only the patient was confronted with, what the circumstances

were at the time [for] the hospital as well.

The circuit court then asked the parties to supplement the record and directed Upper

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Chesapeake specifically to provide information to aid the court’s understanding of the

medical records pertaining to Mr. Smith’s isolation orders; the significance of the hospital’s

isolation and PPE conservation policies relative to those orders; and the effective date of

those hospital policies. The court also invited Mr. Smith to add any information that he

thought would generate a dispute of material fact bearing on whether immunity under PS

§ 14-3A-06 stopped applying to his care after a certain point during his admission.

Upper Chesapeake supplemented the record with affidavits from its Director of

Infection Prevention, Colleen Clay, and its ICU Nurse Manager, Kathy Lynch. Ms. Clay

declared that the pandemic overwhelmed the hospital with critically ill patients and that in

response to state and CDC guidance, she helped establish prevention and control protocols.

She identified COVID-19 ICU procedures in effect at the time of Mr. Smith’s

hospitalization and with which she was familiar: the isolation policy; the PPE conservation

guidance; and the hospital’s Inpatient COVID-19 Plan. To combat the spread of COVID-19

during this time, she affirmed, Upper Chesapeake “suspended visitation, halted all elective

and non-urgent medical procedures, and implemented guidelines, policies, and procedures

concerning prioritization and conservation of PPE pursuant to CDC and Maryland State

guidance.”

Ms. Lynch declared that she was familiar with the COVID-19 response efforts

implemented by Upper Chesapeake’s ICU and their impact on ICU “operations and

delivery of care.” During Mr. Smith’s hospitalization, she explained, the ICU cared for all

patients with or suspected of having COVID-19 “who required mechanical ventilation.”

She was familiar with the ICU procedures in place at the time of Mr. Smith’s admission

12

and stated that, under those policies, “all COVID-19 patients or PUI requiring

hospitalization were placed in isolation,” under either “Airborne, Droplet and Contact

precautions with negative pressure room or Enhanced Droplet and Contact Precautions

without negative pressure room.” Hospital policy directed that even if a PUI received a

negative test result, the hospital would keep them in isolation under these precautions for

at least seven days and if the PUI’s respiratory status continued to deteriorate such that they

required intubation still, they “would remain in PUI status and in isolation with COVID-19

precautions.”

Ms. Lynch described the PPE donning and doffing procedures that ICU staff had to

follow when entering or exiting the room of any patient in isolation and under COVID-19

precautions. The additional time spent following those procedures, she reported, “impacted

the amount of time [staff could spend] with COVID positive patients, PUI, and

non-COVID-19 patients.” She declared that staff attending to Mr. Smith had to “don and

doff full PPE including gowns, gloves, respirator . . . full-face shields, and eye protection

upon entering/exiting his room.” She stated that Upper Chesapeake limited entry to the

rooms of isolated patients under COVID-19 precautions to “pertinent and essential staff”

as part of its efforts to “prevent unnecessary exposure to patients, visitors, and staff, and to

preserve PPE.” She stated also that staff augmented care with “telemedicine and other

communication methods to reduce unnecessary in-person contact,” which affected the

ICU’s normal protocols for providing care and performing patient rounds. Because of Mr.

Smith’s symptoms and his “deteriorating respiratory status requiring mechanical

ventilation,” she affirmed, the ICU classified him as a PUI and kept him in isolation with

13

COVID-19 precautions consistent with their isolation policy, where he remained until

April 22, 2020.

Upper Chesapeake supplemented the record as well with its Inpatient COVID-19

Plan and PPE Donning and Doffing Guides. The inpatient plan set forth elevated staff

precautions as to patient placement, isolation status, PPE, patient care equipment and

transport, patient care, aerosol generating procedures, hand hygiene, and environmental

cleaning and disinfection. The guides provided step-by-step instructions for putting on and

taking off PPE with assistance from another staff member.

Mr. Smith supplemented the record with medical records and affidavits from his

experts, Inocencia Carrano and Brooke Menefee, who supported his position that treatment

for suspected COVID-19 had ended by April 12, 2020.

After hearing additional oral argument from the parties, the circuit court granted

summary judgment to Upper Chesapeake on June 17, 2024. Mr. Smith noted a timely

appeal.

II. DISCUSSION

Mr. Smith raises two questions on appeal 2 that we rephrase slightly: first, whether

1F

2

Mr. Smith phrased his Questions Presented as follows:

1. Whether the Governor’s Emergency Proclamation invoking MD. CODE

ANN., Pub. Safety, § 14-3A-06 extends immunity for medical negligence

committed while providing normal/routine treatment that is unrelated to the

treatment for the COVID-19 virus?

2. Whether subjecting a non-COVID-19 patient to COVID-19 restrictive

protocols confers immunity to the healthcare provider?

Continued . . .

14

the Governor’s emergency proclamation extended immunity for medical negligence

committed while treating a condition other than known or suspected COVID-19; second,

whether subjecting a non-COVID-19 patient to COVID-19 restrictive protocols conferred

immunity to the healthcare provider.

We review de novo whether the court’s grant of summary judgment was correct

legally. See Heneberry v. Pharoan, 232 Md. App. 468, 477–78 (2017) (citing Hrehorovich

v. Harbor Hosp. Cntr., Inc., 93 Md. App. 772, 785 (1992)). We hold that statutory

immunity under PS § 14-3A-06 applies to care provided by health care providers that are

acting in good faith under an emergency proclamation and that the circuit court granted

summary judgment correctly in this case.

A. Statutory Immunity Under PS § 14-3A-06 Was Appropriate Here

Because Upper Chesapeake Acted In Good Faith Under The

Governor’s Emergency Proclamation.

First, Mr. Smith argues that the circuit court erred when it recognized statutory

immunity for an action that, he says, didn’t relate to the treatment of COVID-19 or the care

of a COVID-19 patient, in effect granting Upper Chesapeake “blanket immunity” for

treating suspected COVID-19 patients. He suggests that the Secretary’s Amended Order is

essential to interpreting the scope of statutory immunity in this case and emphasizes that

its plain language excludes “routine care unrelated to treating COVID-19.” As a result, he

Upper Chesapeake stated the Question Presented as one:

1. Whether Upper Chesapeake Medical Center, Inc. is entitled to statutory

immunity under PS § 14-3A-06 for the medical care provided to Mr. Smith

while he was in isolation in the Intensive Care Unit during the infancy of the

COVID-19 catastrophic health emergency?

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asserts that Upper Chesapeake had to provide normal preventive care to avoid deep tissue

injuries and didn’t do so here.

In response, Upper Chesapeake contends that the plain language of PS § 14-3A-06

doesn’t limit immunity only to actions treating COVID-19 and that Mr. Smith’s narrow

reading runs counter to the statute’s purpose and intent. Further, the hospital argues that

the Secretary lacks the authority to define the scope of statutory immunity and that the

Maryland Department of Health’s (the “Department”) interpretation applied only to “the

resumption of elective and non-urgent procedures and appointments,” which took effect

after Mr. Smith’s discharge. Mr. Smith replies that the effective date of the Amended Order

is irrelevant and that it would be illogical to conclude that the legislature intended immunity

for the treatment of conditions that aren’t the subject of a state emergency proclamation.

Second, Mr. Smith asserts that the circuit court reasoned erroneously that because

he remained subject to Upper Chesapeake’s COVID-19 protocols, the statute conferred

immunity for the treatment he received after the hospital ruled out a COVID-19 diagnosis.

By counting COVID-19 precautions as COVID-19 treatment, he argues, the court widened

the scope of immunity beyond that established by the Amended Order.

Upper Chesapeake maintains that it adopted multiple emergency protocols during

the pandemic that affected the treatment Mr. Smith received and that its actions under those

policies related sufficiently to the pandemic and the emergency proclamation such that

statutory immunity applies. As reinforcement, the hospital points to modified policies

regarding PPE and how the need to conserve limited PPE resources, limit unnecessary

exposure, and control the spread of the virus affected the staff’s ability to spend time with

16

patients. Upper Chesapeake contends that even though Mr. Smith had tested negative for

COVID-19, he remained critically ill, compelling the hospital to suspect COVID-19

infection and keep him in isolation in the ICU with COVID-19 precautions in place during

the period of alleged negligence. In this respect, it argues, the care Upper Chesapeake

provided “cannot be extricated from COVID-19,” and Mr. Smith didn’t contest the impact

its COVID-19 policies had on the hospital’s treatment capacity during that time.

Although we agree with Mr. Smith that the immunity statute doesn’t confer blanket

immunity on all health care providers for all claims arising during declared emergencies

under any circumstances, we hold that the text of the statute does immunize care provided

in good faith in compliance with directives issued in connection with a declared

emergency. The text doesn’t point to the degree of connection between the diagnosis or the

care and the source of the emergency, in this case COVID-19, but rather to the good faith

of the provider’s response to the Governor’s declared emergency. The statute recognizes

that the declared emergency alters providers’ ability to provide care in accordance with the

usual standard of care. So long as the provider, in good faith, has adopted and is executing

protocols that respond to the declared emergency and the directives of the Secretary, the

provider is entitled to immunity for claims arising from that care.

The Public Safety Article defines the health emergency powers that the Governor

can invoke under appropriate circumstances. PS § 14-3A-01 et seq. When those conditions

are present—and nobody disputes that the COVID-19 pandemic qualified—Title 14,

Subtitle 3A authorizes the Governor to issue a proclamation that a “catastrophic health

emergency” exists and to take certain emergency management actions. PS

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§§ 14-3A-02(a)–(b), 14-3A-03. The statute prohibits healthcare providers from refusing to

comply with emergency orders, requirements, or directives issued by the Executive. PS

§ 14-3A-08 (a)(1), (b)(1). But these statutory powers aren’t limited to any particular kind

of health emergency and the statute doesn’t prescribe specific emergency measures. To the

contrary, emergencies may require providers to provide care under conditions, and in

manners, that they wouldn’t if they followed normal regulatory standards or the governing

standard of care. And in recognition of this trade-off, the statute states that “[a] health care

provider is immune from civil or criminal liability if the health care provider acts in good

faith and under a catastrophic health emergency proclamation.” PS § 14-3A-06.

The critical words in that sentence are “good faith.” The parties don’t dispute that

the Governor issued a proclamation that declared COVID-19 a catastrophic health

emergency for purposes of PS § 14-3A-02, that the emergency proclamation was in effect

during Mr. Smith’s hospitalization, or that Upper Chesapeake acted in good faith when it

cared for him. But although the text of PS § 14-3A-06 states plainly that care provided by

a healthcare provider in good faith under a declared health emergency cannot be grounds

for civil liability, Mr. Smith and Upper Chesapeake disagree about where the hospital’s

immunity begins and ends. Mr. Smith asks us to interpret a provider’s actions “under a

catastrophic health emergency proclamation” narrowly, and to limit immunity to actions

that treat a patient for illness caused by the biological agent that gave rise to the emergency

proclamation—here, COVID-19. See PS § 14-3A-01(b)–(c) (definitions of “catastrophic

health emergency” and “deadly agent”). Upper Chesapeake argues for a broader

construction that protects actions healthcare providers had to take because of the

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emergency proclamation, even if those actions affected the care received by patients who

hadn’t tested positive for COVID-19. We look to the text of the statute, and that language,

on its face, confers immunity bounded by the provider’s good faith adaptation to the

emergency, in compliance with the directives of the Governor and executive branch

officials authorized to declare it. So long as the provider’s deviations from the standard of

care are grounded in policies or protocols that represented a good faith response to the

emergency—and in this case, they did—the provider is immune from liability.

The historical context that led to the creation of the immunity provision only bolsters

this reading of the text. See Lyles v. Santander Consumer USA Inc., 478 Md. 588, 603

(2022) (reviewing courts can look beyond the plain meaning of the statute to consider its

context, overall statutory scheme, and history of legislative enactments). Section 14-3A-06

originated from an emergency law passed after the terrorist attacks of September 11, 2001.

See 2002 Legislative History for SB 0234—Emergency Bill; Fiscal Note at 5; Revised

Fiscal Note at 7; Floor Report at 5; and Statement from Office of the Governor to Senate

Education, Health, and Environmental Affairs Committee dated February 6, 2022 at 1 in

legislative file for Senate Bill 234. In 2002, the General Assembly granted the Governor

enhanced emergency health powers so that the Executive could more effectively “handle

large-scale communicable threats, such as plague and smallpox” and “address mass

casualty or bioterrorism events, preparedness, disaster planning, mandatory training, or

stockpiling of medication and equipment.” See 2002 Md. Laws, Chap. 1, 1 (the purpose of

emergency health bill was to “specify[] the powers of the Governor during a catastrophic

health emergency” and “authoriz[e] the [Health] Secretary to require certain health care

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practitioners to implement certain plans,” among others); Floor Report in legislative bill

file for Senate Bill 234 at 2; Md. Gen. Assembly, Dep’t of Legis. Services, Revised Fiscal

Note, S.B. 234, 416th Sess., at 7 (2002). The law responded to the recommendations of a

joint task force that the General Assembly appointed in an effort “to prepare a legislative

response to terrorism and related topics.” Revised Fiscal Note, S.B. 234, at 6; Bill Summary

in legislative file for House Bill 296 at 8 (emergency health measure part of anti-terrorism

package made up of nine bills to address “anti-terrorism and emergency preparedness

issues.”). And the legislative file recounts expressions of concern about “the capacity of

Maryland hospitals to handle a large scale epidemic.” Revised Fiscal Note, S.B. 234, at 7.

At first, S.B. 234, the bill that would become PS § 14-3A-01 et seq., didn’t have an

immunity provision. See S.B. 234, First Reading, 2002 Gen. Assemb., 416th Sess. (Md.

2002). The General Assembly added it after receiving stakeholder input. Md. Gen.

Assembly, Educ., Health, and Env’t Affairs Comm., Amendments to Senate Bill No. 234,

S.B. 234 -154831/1, 416th Sess., at 15 (2002); Floor Report in legislative file for Senate

Bill 234 at 2 (amendment “provides immunity for civil and criminal liability to a health

care provider acting in good faith and in accordance with the proclamation.”); Unofficial

Copy of House Bill 296 in legislative file for Senate Bill 234 at 6.

The General Assembly amended S.B. 234 to provide “immunity for health care

providers” when they acted in good faith pursuant to a state-proclaimed catastrophic health

emergency. See Unofficial Copy Of Senate Bill in legislative file for Senate Bill 234 at 7

(marginalia); Revised Fiscal Note, S.B. 234, at 3 (amendment to grant immunity from

“liability related to the provider’s actions taken under the proclamation” adopted). With

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that, the emergency law included the following immunity provision:

Immunity of health care provider acting under proclamation;

exception.—A health care provider acting in good faith and in

accordance with a catastrophic health emergency proclamation

is immune from civil or criminal liability related to those

actions, unless the health care provider acts with willful

misconduct.

2002 Md. Laws, Chap. 1, sec. 1, § 2-202(g), 8; Md. Code (1957, 1997 Repl. Vol., 2002

Cum. Supp.), Art. 41 § 2-202(g) (repealed 2004).

In 2004, the General Assembly revised the Maryland Code and carried the immunity

provision over to the Public Safety Article. See 2004 Md. Laws, Chap. 26, at 172 (an act

to revise the code “without substantive change [of] provisions related to . . . the Governor’s

emergency powers for catastrophic health emergencies.”); PS § 14-3A-06. In its current,

more succinct form, the statute states that a “health care provider is immune from civil or

criminal liability if the health care provider acts in good faith and under a catastrophic

health emergency proclamation.” PS § 14-3A-06.

The immunity provision is part of a statutory scheme meant to address concerns

about State anti-terrorism efforts and emergency preparedness, Floor Report in legislative

bill file for Senate Bill 234 at 2, 4–5, including “the capacity of Maryland hospitals to

handle a large scale epidemic,” Revised Fiscal Note, S.B. 234, at 7, and its plain language

reflects that purpose. Senate Bill 234 was an emergency bill that enhanced the emergency

health powers of the Governor so that the Executive could manage a coordinated, effective

response to public health crises by issuing directives to public and private actors. See PS

§§ 14-3A-03–14-3A-05. The law envisioned a collective emergency response to statewide

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public health threats that would require departures from the status quo. Id. Mr. Smith’s

interpretation would have Upper Chesapeake’s ICU staff meet the normal standard of

medical care while operating under modified protocols during a catastrophic health

emergency, switching gears as they go, depending on the COVID-19 presentation and

specific medical circumstances of each patient. But the language of the immunity provision

isn’t so conditioned. And it isn’t hard to imagine how Mr. Smith’s reading of the statute

could lead to different immunity answers for different patients receiving care at the same

hospital at the same time, depending on their diagnoses. That wouldn’t make sense. The

declared emergency forced everyone to deviate from the standard of care in ways that

nobody could predict with precision, and an uncertain or uneven notion of statutory

immunity would undermine the emergency declaration’s critical purpose.

We can see from the text that the General Assembly conditioned immunity for

healthcare providers only on good faith and an emergency proclamation under PS

§ 14-3A-02. The immunity provision limits liability concerns that otherwise might restrict

healthcare providers’ ability or willingness to act quickly in a declared emergency. Mr.

Smith’s interpretation would have providers observe emergency protocols only for ICU

patients marked as COVID-19 (known or suspected) but follow the normal standard of care

for ICU patients without that label. But this interpretation is problematic in two key

respects. First, those individualized distinctions create minefields for providers to navigate

during a declared health emergency and could force providers to prioritize treatment of

non-COVID-19 patients to mitigate liability risks over care to COVID-19 patients, for

whom they would have immunity. Nothing in the text or legislative history of S.B. 234

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suggests that the General Assembly expected frontline providers to provide different levels

of care to different people in the event of an emergency, act of terrorism, or a “large scale

epidemic.” See Floor Report in legislative bill file for Senate Bill 234 at 2, 4–5; Revised

Fiscal Note, S.B. 234, at 7. Second, it fails to recognize that modified, emergency

procedures in an acute care setting that have been adopted because of a state-declared

health emergency undoubtedly will affect the resources and level of care available to all

patients in that unit, regardless of whether COVID-19 is in their medical chart.

In this case, the circuit court couldn’t get comfortable with a statutory interpretation

that didn’t account for the pandemic and its overall impact on a hospital’s normal

operational capacity. The court concluded that interpreting the immunity provision to apply

based only on an individual’s diagnosis of and treatment for COVID-19 (known or

suspected) would be unreasonable and unrealistic because it would require healthcare

providers to run two systems of care during catastrophic health emergencies:

[The hospital has] a staff meeting and, as a result, you know,

Mr. Smith’s care needs to change, but the individual that’s in

the room right next to him, we still have immunity as to that

individual. So, it’s a bit hard for me to accept that that would

be the way that this situation was supposed to work.

Particularly in April of 2020. . . . I don’t believe immunity

pops like a bubble. And it seems to me that you would have me

make a finding here that the moment [Mr. Smith’s] COVID

test comes back negative, and he’s effectively ruled out as

having COVID—he may still be at risk of contracting

COVID—but the moment that his COVID test comes back

negative, then it’s like a balloon. His bubble—the immunity

that applies to his healthcare provider is popped. But it’s still

in effect as to all these other people that are at the hospital that

are under suspicion of having COVID or that do have COVID

or that they have concerns about those other individuals

contracting COVID.

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***

THE COURT: And then you believe it’s a reasonable

interpretation that—that COVID test comes back and indicates

Mr. Smith is, at that point, negative for COVID. Then it’s

business as usual as it pertains to this individual.

[COUNSEL FOR MR. SMITH]: Well, I—

THE COURT: They are required to adhere to the standard of

care—

[COUNSEL FOR MR. SMITH]: Yes.

THE COURT: —as if we were doing this in April of 2024?

[COUNSEL FOR MR. SMITH]: I do believe that to be the

case, Your Honor. That is the clear position of Mr. Smith.

***

THE COURT: An individual that enters a hospital, who clearly

immunity would apply to on day one, certainly day two, three,

four, five, six, seven, eight, nine, or so. And then to say at some

point during this individual’s hospital stay, during the midst of

a public health catastrophe, during a period of time where all

of the affidavits . . . indicate that [Upper Chesapeake] was

employing the appropriate COVID-related restrictions, all the

policies and procedures that were in place that pertain to the

use of PPE, all the policies and procedures that were in place

in terms of limiting exposure to staff and patients, and how the

PPE was . . . donned and doffed in and out of the rooms, and

the great confusion that the hospital is faced with during this

period of time, it would defy logic to say that . . . immunity

would’ve then popped like a bubble and would’ve gone away.

And I don’t believe that is what the statute is intended to tell

both patients and the hospital staff. I don’t believe it would

allow the hospital to adequately design . . . a system of care in

the midst of this pandemic—not only in the midst of a

pandemic but in the very early stages of a very confusing and

concerning catastrophic health emergency as it said.

The court found the duration and timing of Mr. Smith’s admission—a month-long stay

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mostly in April 2020, during “the most intense, uncertain, arguably frightening period of

the pandemic”—counseled in favor of a broader concept of immunity. The court

analogized the proper scope of immunity here to the qualified immunity extended to police

officers and state officials—a fair comparison in concept, although here, unlike the civil

rights setting, at least we have a statute to guide the line-drawing exercise more precisely.

Our opinion in Constantine v. Balt. Wash. Emergency Physicians, No. 2132, Sept.

Term 2022 at *1 (Md. App. February 28, 2024) persuaded the circuit court that the

immunity analysis depends on the connection between the care and the purpose of the

emergency protocols. In that case, the appellant came to the emergency room, reporting

“fever, muscle aches, chills, nausea, mild cough and diarrhea” and said she suspected that

her coworkers were sick with COVID-19. Id. at *1. The hospital suspected that she had

COVID-19 but didn’t test her because she didn’t meet the applicable testing criteria. Id.

She came back to the emergency room three days later and presented “knee and back pain,

sweats, chills and a cough.” Id. The hospital still suspected she had COVID-19 but

discharged her again without testing for it. Id. Five days later, another hospital diagnosed

her with sepsis and endocarditis; she tested negative for COVID-19 at that time. Id. The

appellant sued the first hospital and it claimed immunity under PS § 14-3A-06. Id. Like

Mr. Smith, the patient there argued that the statute didn’t create “blanket immunity” for

any good faith medical care performed during a catastrophic health emergency and that

immunity applied only to a hospital carrying out specific state emergency directives. Id. at

*3. The hospital advocated for “expansive” immunity, marked only by issuance and

expiration dates of the emergency proclamation. Id. at *4. We opined that a reasonable

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interpretation fell somewhere between their positions, Id., and concluded that the

appellant’s emergency room visits “were sufficiently related” to the emergency

proclamation for immunity to apply. Id. at *5.

Constantine recognized statutory immunity under PS § 14-3A-06 as a fact-bound

inquiry that required a relationship between the provider’s actions that caused an alleged

breach of care and the emergency health proclamation. But in Constantine, there was no

dispute that the patient sought COVID-related care—although she never was found, for

lack of testing, to have the virus, we found an indisputable nexus between the care that

patient sought and COVID itself. As a result, that case wasn’t a great vehicle to consider

the outer contours of the immunity created by § 14-3A-06, and we resolved it on its facts.

This case is different. Upper Chesapeake cared for Mr. Smith as a suspected COVID

patient until he tested negative for the virus on April 11. But because of the hospital’s

Emergency Response Plan, he remained under COVID precautions in the ICU until April

22. After April 11, he received the care underlying his claims—that care didn’t grow out

of any diagnosis that he had COVID, but was influenced by the hospital’s response to

COVID. The ongoing health emergency and the hospital’s good faith compliance with the

Governor’s proclamation and the Department’s guidance required the hospital to change

how it delivered care to everyone, including Mr. Smith. For instance, on March 3, 2020,

the Department provided criteria for evaluating PUI that matched Mr. Smith’s presentation,

and advised county health departments that “[f]ailure to meet a PUI does not definitively

exclude the possibility of COVID-19” and that healthcare providers who suspected

COVID-19 should manage the patient “using Standard, Contact, and Airborne Precautions

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with eye protection until the diagnosis is excluded.” Md. Dep’t of Health, Infectious

Disease Epidemiology and Outbreak Response Bureau, Coronavirus Disease 2019

(COVID-19) Update 10, 14 (Mar. 3, 2020), Md. State Archives, Dept’s Collection,

archived at https://perma.cc/W9SK-7VD2. The Department’s guidance advised further

that healthcare providers should evaluate all confirmed COVID-19 and PUI patients in

Airborne Infection Isolation Rooms, prioritize those rooms “for the care of hospitalized

patients who are symptomatic with severe illness and for those needing procedures that

could generate infectious aerosols,” like Mr. Smith, and wear PPE when caring for those

patients. Id. at 13. Upper Chesapeake provided care consistent with this guidance to Mr.

Smith until April 22, the time during which he developed the deep tissue injury underlying

his claims in this case. And the hospital’s records reflect its application of the COVID-19

response policies to Mr. Smith in a manner consistent with his clinical presentation.

Because the hospital’s good faith compliance with the emergency health proclamation

altered its delivery of care, the care Mr. Smith received from the hospital in this case is

entitled to immunity under the statute.

We don’t read PS § 14-3A-06 to confer absolute immunity for any action taken by

any healthcare provider during a declared catastrophic health emergency. The statute asks

whether the care is being delivered in good faith “under a catastrophic health emergency

proclamation,” PS § 14-3A-06, and a provider that didn’t respond to a declared emergency

or that implemented protocols inconsistent with professional or regulatory good faith

wouldn’t be entitled to immunity under § 14-3A-06. In this case, though, there is no

allegation, let alone evidence, that Upper Chesapeake failed to devise or implement its

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emergency protocols in good faith. The circuit court extended statutory immunity to Upper

Chesapeake and granted summary judgment to the hospital correctly.

JUDGMENT OF THE CIRCUIT COURT

FOR HARFORD COUNTY AFFIRMED.

APPELLANT TO PAY COSTS.

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