Governor Gretchen Whitmer issued an executive order requiring hospitals to develop protocols to guide medical decision making in circumstances where demand for critical medical resources exceeds supply during the COVID-19 pandemic.  EO-64 further requires that the protocols prohibit “medical decision-making based on social stigma or stereotypes” regarding a long list of categories.  The preamble of EO-64 acknowledges that hospitals already consult with medical ethicists regarding “essential duties of medicine in moments when demand for critical medical resources exceeds supply.”  However, the Governor found it necessary to “affirm anti-discrimination policies and establish procedures to ensure the equitable allocation of medical resources.”

Who does EO-64 apply to?

Section 4(a) requiring development of protocols to guide medical decision making where demand for medical resources exceeds supply applies only to “designated health care facilities.”  Section 5 defines a “designated health care facility” as a “hospital or an entity used as surge capacity by one or more hospitals.”  However, sections 2 and 3 apply broadly to “health care providers.”

What does EO-64 require?

  1. Hospitals are required to develop protocols to guide decision making for medical care in situations where demand for critical medical resources exceeds supply “during the COVID-19 pandemic.” Therefore, unlike the other broad provisions of the order, section 4 is narrowly tailored to the COVID-19 pandemic.  Section (4) of EO 64 requires the protocols to prohibit medical decision making based on “social stigma or stereotypes” regarding the following categories:  age, color, criminal history, disability, ethnicity, familial status, gender identity, height, homelessness, immigration status, incarceration status, marital status, mental illness, national, origin, poverty, race, religion, sex, sexual orientation, socio-economic status, substance abuse disorder, use of government resources, veteran status or weight.  While many of the categories identified in section (4)(a) constitute protected classes under state and federal civil rights statutes, including categories such as age and weight in the list could be problematic for hospitals and physicians where those characteristics may have a significant impact on a patient’s underlying health condition and ability to survive and/or recover from COVID-19. To the extent hospitals have already developed protocols, the protocols will need to be amended to incorporate the anti-discrimination language of EO-64.
  2. Section (4) of EO-64 also requires that hospitals share information with DHHS regarding resource and transfer availability; ensure that withholding or delaying care due to lack of critical resources is a “last resort” and to post protocols on the internet whenever they are in effect.
  3. Section (2) of EO-64 broadly requires “health care providers” to “ensure non-discrimination based on the characteristics described in section (4)(a)” in providing “critical care and allocation of medical resources to those in need of treatment for physical and psychiatric illness.” Unlike section (4), section (2) is not limited to hospitals or the COVID-19 pandemic.  In fact, section (2) is not even limited to situations where demand for critical medical resources exceeds availability.  While the section refers to the characteristics described in section (4)(a), it does not require development of a protocol nor specify any action health care providers must take to “ensure non-discrimination.”
  4. Section (3) of EO-64 requires health care providers to continue to support “functional needs” of patients. It defines “functional needs” to include “independence, communication, transportation, supervision and medical care.”  Section (3) specifically requires that an interpreter be provided when necessary for communication and that the interpreter be provided “appropriate PPE.”  The order doesn’t provide a definition of “appropriate PPE.”

What about immunity?

As outlined in Executive Order (EO-61) Fails to Clarify Scope of Immunity for Health Care Providers  and Executive Order Provides Immunity to Health Care Providers During COVID-19, the Governor has issued two executive orders providing immunity to health care providers with respect to “medical services in support of this state’s response to the COVID-19 pandemic.”  The orders provide immunity from liability 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, as defined in MCL 30.411(9), of such health care professional or designated health care facility.”  The Governor’s declaration of a state of disaster also activates the immunity provisions of the Emergency Management Act (EMA) which provides immunity unless an act or omission constitutes “willful or gross negligence.”  Despite the fact that the executive orders don’t include the term “willful” in the exception language, it seems doubtful a court would interpret the orders as providing immunity for intentional acts where it exempts acts constituting gross negligence.

Michigan courts have found that a health care provider may not decline to provide care for a patient based on a discriminatory animus toward a protective characteristic (See Moon v Michigan Reproductive & IVF Center, PC, 294 Mich App 582 (2011)).  Given the immunity provisions of the executive orders and EMA, it appears unlikely that a health care provider would be subject to liability relative to difficult decisions surrounding allocation of medical resources where demand exceeds supply during the COVID-19 pandemic.  However, it is possible plaintiffs will advance an argument based on EO-64 that decisions allocating resources where demand exceeds availability were willful or intentional if allegedly based on a discriminatory animus and are therefore exempt from the immunity provisions of the EMA and/or executive orders.  This could, in turn, lead to litigation regarding whether such claims sound in medical malpractice.  In short, EO-64 does nothing to clarify the scope of immunity for health care providers for care rendered during the COVID-19 pandemic.

Rhoades McKee’s dedicated medical malpractice defense team stands ready to assist you and your providers’ legal needs, even in these trying times.  Please feel free to contact any member of the team if you have any questions or concerns about these executive orders or any other issues facing your providers today.

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