In April 2020—six weeks after Indiana declared a public health emergency because of COVID-19—an ambulance brought a patient to the hospital with nausea, vomiting and a headache.
En route, emergency medical technicians performed a stroke assessment and did not find any evidence of one. When the patient, Ed Fluhr, arrived at the hospital, doctors ordered a COVID-19 test and a computed tomography scan, which did not show any abnormalities. He deteriorated during the testing and was transferred to a higher-tier facility.
Physicians there also suspected COVID-19. They gave Fluhr two SARS-CoV-2 tests and placed him in contact isolation, per pandemic protocols. The physician noted that a more thorough, full-contact examination would have been done if not for the suspected COVID-19.
Testing showed that the man did not have COVID-19, but he suffered a stroke and ultimately died. His widow sued the treating physicians, associated medical groups and hospitals claiming that her husband was misdiagnosed, and critical care was delayed, contributing to his death.
The case, Fluhr v. Anonymous Doctor 1 et al., is the first test of Indiana’s 2021 law establishing that physicians, hospitals and other health professionals cannot be held liable for an act, omission or delay relating to health care emergency medical services arising from the state disaster emergency declared in response to COVID-19.
The Court of Appeals of Indiana upheld the law.
The Litigation Center of the American Medical Association and State Medical Societies joined the Indiana State Medical Association in filing an amicus brief in the case, reminding the court of the circumstances physicians and hospitals faced early in the pandemic.
“With little time to prepare, health care providers were forced to adapt to new clinical settings, unfamiliar protocols, changes in licensing and regulatory requirements, cessation of routine services, rationing of supplies and equipment,” said Elizabeth Struble, MD, a family physician who is past president of the Indiana State Medical Association and chairs its legislation committee,
“That's a time I think we would prefer to forget. But with that backdrop, the brief explained to the courts that the exact reason for the statute was to prevent us from second guessing in 2024 the extreme measures that we had to take to protect our patients, our workforce, and society in 2020,” Dr. Struble said during the AMA Litigation Center’s open meeting, held during the 2024 AMA Annual Meeting last month.
Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.
A new “normal” during pandemic
The anonymous physicians, medical groups and hospitals that were the target of the lawsuit acknowledged that more comprehensive testing may have led to a different result. But they told the court that Indiana’s COVID-19 public health emergency declaration constrained normal procedures. Instead, there were protocols in place in response to the emergency, protocols that led to the state’s health care immunity statute.
The AMA Litigation Center and the Indiana State Medical Association through their brief underscored that while the assessment would have been standard procedure in ordinary times, things were not normal during the global pandemic.
“The COVID-19 immunity statute represents the General Assembly’s sound legislative judgment that health care providers should not be subject to civil liability, based on conventional standards of care, for how they render medical services under crisis conditions,” the brief says.
Further, the brief notes, “immunity statutes lend clarity and stability to health care systems by relieving health care providers of the distraction of potential lawsuits in a chaotic work environment that is already fraught with uncertainty and unpredictability. And by encouraging the implementation of measures to prevent or minimize the spread of COVID-19, immunity statutes contribute to the physical and psychological safety of health care workers.”
Appellate court victory
Upholding the trial court decision, the Court of Appeals of Indiana agreed that the physicians and others were entitled to immunity carved out under the 2021 law. They ruled that no one acted with gross negligence or reckless disregard.
“The only reasonable conclusions reached from the designated evidence is that Ed received care in line with that expected during an uncertain time—April 2020—while the world grappled with a global pandemic,” the appellate court wrote.
The court thanked the “Indiana State Medical Association and the American Medical Association, for their helpful brief.”
In late June, following the AMA Annual Meeting, the plaintiff filed a petition to transfer the case to the Indiana Supreme Court, which has full discretion on whether to grant or deny the petition to transfer. There is no timeline for the court to make a decision on the petition, according to Julie Reed, executive vice president of the Indiana State Medical Association.
