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Pushback growing against North Carolina’s COVID liability law

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Dan Schwalm
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Courtesy Mission Health

North Carolina enacted a law early in the coronavirus pandemic that gave medical providers near-absolute immunity from civil liability. Now, the nation's largest for-profit health care system could use that law to quash a medical malpractice claim that has nothing to do with COVID. Some legislators say they want to revisit the law.

March 19, 2020, was supposed to be a joyful day for Zeb Smathers — a lawyer and the mayor of Canton, N.C. — and his wife Ashley.

The Haywood County residents had been looking forward to the birth of their first child. Instead, the Smathers are now suing one of the largest for-profit hospital chains in the U.S. for malpractice, but a wide-ranging COVID-related law that shields health care providers from civil liability will make that more difficult.

Towards the end of their three-day ordeal at Asheville’s Mission Hospital, Ashley had waited nearly five hours for an emergency C-section, losing 10 liters of blood, and Zeb was told by a doctor to prepare for the possibility that Ashley and their son Stone would both die.

They didn’t, but Ashley’s hysterectomy will rob her of the ability to have more children, and Stone’s brain suffered damage consistent with a lack of oxygen resulting in a diagnosis of cerebral palsy.

Intentions behind the law 

On May 4, 2020, North Carolina’s General Assembly enacted the comprehensive,retroactive law that offered not only regulatory relief, educational guidance and economic support for the state’s 10 million residents, but also blanket immunity for health care providers — except in cases of gross negligence, reckless misconduct or the intentional infliction of harm.

Legislators on both sides of the aisle say they were concerned about lawsuits from people who might claim they’d contracted COVID-19 while receiving medical care. They were also concerned about the impact the pandemic could have on hospital staffing levels.

Asheville Democratic Rep. Brian Turner was in the General Assembly when it was passed unanimously.

“In my recollection, there was never an intent to [create] this broad umbrella of protection against any kind of malfeasance or any kind of issues arising from non-COVID related problems.” said Turner. “I think that this is one of those times where we were overly broad.”

Macon County Republican Sen. Kevin Corbin also voted for the bill.

“I think health care providers certainly need to be held accountable when things are done improperly, or when there's been [a] case of malpractice.” Corbin added that the intent of the legislation was “to allow health care providers a little freedom to do their jobs instead of being worried about a lawsuit.”

Haywood Republican Rep. Mark Pless, who wasn’t in the General Assembly when the bill passed, largely agrees with Turner and Corbin about the law. He says it was meant to protect hospitals during uncertain and unprecedented times.

“I believe it was to relieve the responsibility because the hospitals were going into something that they did not understand,” said Pless. “The science wasn't there. The technologies were not there. The medications were not there. They didn't want the hospitals to be held accountable for something that really they had no preparation for.”

Pless said his understanding was that it should only be used for cases involving coronavirus.

Mary Scott Winstead, deputy communications director in the office of Gov. Roy Cooper, told WUNC on Oct. 21 that although courts will decide on a case-by-case basis, immunity shouldn’t shield bad actors from accountability.

A spokesperson for Attorney General Josh Stein’s office said that Stein and the Department of Justice are closely monitoring this case as well as other litigation with Hospital Corporation of America, the parent company of Mission Hospital. HCA has been under fire for quality-of-care issues at Mission Hospital since purchasing what was a non-profit facility back in 2018.

North Carolina Treasurer Dale Folwell is the state’s largest purchaser of health care on behalf of state employees and has been critical of HCA, calling it a “cartel.”

“Our vision is, number one, especially in Western North Carolina, for the virus of HCA to be put into ‘remission,’” said Folwell. “Let's put Mission Health back to the standards that it had for decades in Western North Carolina. Secondly, it has to be built on the chassis of patients over profits, not profits over patients.”

Protections across the country

North Carolina isn’t the only state with such pandemic-era immunity laws. Prior to the pandemic, most states had already codified generic business liability protections, just as most states then enacted some form of COVID-19 immunity laws after the pandemic began.

Nash Long, an attorney with Charlotte-based Hunton Andrews Kurth LLP and former chair of the Health Law Litigation Committee of the American Bar Association’s Litigation Section, explains.

“What you saw in 2020 was a wave of these types of statutes being passed from the spring throughout the summer, and various states taking approaches to rewriting the laws to try to deal with what was actually happening at their hospitals and what the needs were for those facilities as they were trying to grapple with these new conditions and provide care to their patients.”

Long said that the North Carolina statute appears to be “very broad,” but there are limits.

“The statute as written confers immunity when the health care services are impacted, either directly or indirectly, by the response the health care facility or health care provider is making to the COVID-19 pandemic. If there is no impact that can be shown as a result of the response, then the immunity would not apply.”

The lawsuit filed by the Smathers family will test both the constitutionality and the scope of those laws, and could change how the national health care lobby approaches pandemic-era negligence claims in the future.

Legislators that talked to WUNC about the bill, including Turner, Corbin, Pless and Swain County Republican Rep. Mike Clampitt, said that there’s a possibility that the General Assembly could take a hard look at the law in an upcoming session.

“There's always those unintended consequences that do occur from our legislation from time to time, and I think there's probably a real need for us to review that in the first part of 2023 when we reconvene after being sworn back in," said Clampitt.

House Speaker Tim Moore did not respond to requests for comment for this story.

A spokesperson from HCA said the care provided to Ashley and Stone Smathers was “appropriate,” but HCA hasn’t yet filed an answer to the lawsuit, which will almost certainly end up in a state court of appeals.

Cory Vaillancourt