Mission offers ‘COVID immunity’ defense in response to malpractice suit

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Mission offers ‘COVID immunity’ defense in response to malpractice suit

Mission Hospital and HCA are accused of gross negligence and reckless misconduct. Peter Lewis/Asheville Watchdog photo

Hospital Corporation of America and Asheville’s Mission Hospital have responded to a lawsuit filed by a Canton woman that claims their negligence led to life-threatening complications during the birth of her son.

The suit, initially filed in September, claimed that Stone Smathers was born in March 2020 following an ordeal that lasted over 24 hours and caused his mother, Ashley Smathers, to lose a total of 10 liters of blood in the process. Ashley, wife of Canton Mayor Zeb Smathers, was an otherwise healthy 32-year-old woman and had experienced a normal pregnancy but labored unsuccessfully for more than three hours, pushing for two.

The suit further alleged “egregious acts of medical and corporate negligence.” It describes a heinous account during which Mission Hospital “knowingly and intentionally” placed “profits over patient safety by reducing the number of surgical teams working and available at the hospital or on call overnight.”

It claims that well before a C-section was ordered, Stone’s fetal heart monitor showed “increasingly concerning signs” that he may not have had an adequate oxygen supply. The suit goes on to allege that the accepted standards of care required Mission to “complete this C-section order as soon as possible and within 30 minutes,” and that Mission’s gross negligence and reckless disregard for patient safety caused permanent injuries.

Because of the massive loss of blood that was continuing, a surgical team was “forced to perform an emergency hysterectomy to save her life,” a procedure that ensures she will never be able to bear another child again.

While Ashley Smathers almost lost her life, because of his hypoxic brain injury, Stone will be left to deal with cerebral palsy and “associated delays and disabilities” for the rest of his life.

There were two responses to Smathers’ suit filed, one on behalf of HCA Healthcare Inc. and one on behalf of Mission Hospital. The response to the suit regarding HCA was pretty straightforward and argued that that particular defendant “did not employee any health care providers at the time relevant to this action” and cited a 2009 North Carolina Court of Appeals Case that defines “health care-provider-to-patient relationship” to back its claim. Essentially, HCA pushed responsibility and liability back onto the doctors themselves.
“These Defendants did not directly, or through its employees, provide any health care treatment to any of the Plaintiffs,” HCA’s response reads. “These Defendants did not have a health care provider to patient relationship with any of the Plaintiffs. These Defendants are distinct legal entities from MH Mission Hospital LLLP. Because these Defendants did not have a health care-provider-to-patient relationship with Plaintiffs, they cannot be liable.”

The response to the suit against Mission Hospital was different. It offered five defenses, including one that called the claims for punitive damage “frivolous and malicious” after which it claims that the defendants are entitled to recovery of its attorney fees from the plaintiffs.

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The most notable defense may be the “COVID immunity” defense.

“The events giving rise to this lawsuit occurred from March 19 to March 21, 2020, shortly after the COVID-19 pandemic spread to Western North Carolina,” it reads. “That pandemic affected every aspect of our healthcare system, both directly and indirectly, and March 2020 was a time of extraordinary tension and uncertainty for healthcare providers. Because of that uncertainty and the demands the COVID-19 pandemic placed on healthcare providers, our legislature unanimously enacted N.C.G.S. § 90-21.133, which protects healthcare providers like MH Mission Hospital, LLLP and its employees from liability for good-faith errors that occurred while providing health care that was impacted by the COVID pandemic.

“MH Mission Hospital, LLLP is entitled to immunity under N.C.G.S. $ 90-21.133 because: (1) the events in question occurred during the COVID-19 emergency declaration; (2) the provision of health care by MH Mission Hospital, LLLP was impacted by the COVID-19 pandemic; and (3) MH Mission Hospital, LLLP was providing health care in good faith.”

The statute cited includes a passage that notes that health care facilities and providers can be shielded from civil liability over “harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services.”

That statute is a wide-ranging 70-page Senate bill that offered economic support, regulatory relief and educational modifications meant to guide and assist residents through an unprecedented pandemic.

In a previous Smoky Mountain News story, attorney Robert Zaytoun, who represents Smathers, offered his thoughts as he anticipated that defense.

“I think it was intended to genuinely protect hospitals that were in the throes of their health care providers dealing with a massive COVID crisis that we were in,” he said. “Do I think anybody should ever have immunity? Personally no, but I can understand that extraordinary times call for extraordinary measures and there was a time when our hospitals were overwhelmed and our healthcare workers were just getting beaten to death — but that's not this case, in our view, based upon our factual investigation.”

The original suit put forth several reasons why the immunity provision should not apply to the Smathers suit.

First, Stone was born on March 21, 2020, but the bill was enacted on May 4 of that year and applies retroactively. Smathers alleges that the retroactive application removes a vested right and violates the due process and equal protection clauses of the U.S. and North Carolina constitutions.

Moreover, the suit claims that the care provided to Stone wasn’t impacted by COVID; that Mission Hospital was not treating a single COVID patient when Ashley was admitted; that Mission did not treat any COVID patients in the labor and delivery ward during Ashley’s delivery; that Mission never informed Smathers that the care they would provide had been impacted by COVID; that Mission did not experience staffing shortages due to COVID during Ashely’s delivery; and, that the actions of HCA constituted gross negligence and reckless misconduct.

The defendants ultimately requested that the plaintiffs’ complaints be dismissed with prejudice and that plaintiffs pay for the cost of the defense attorneys fees.

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