Mills v. Hartford HealthCare Corp. ( 2023 )

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KRISTIN MILLS, ADMINISTRATOR (ESTATE OF
CHERYL MILLS) v. HARTFORD HEALTHCARE
CORPORATION ET AL.
(SC 20763)
(SC 20764)
(SC 20765)
McDonald, D’Auria, Mullins, Ecker and Seeley, Js.
Syllabus
The plaintiff, the administrator of the estate of the decedent, C, sought to
recover damages from the named defendant, H Co., which operates
Hartford Hospital, and the defendant physicians, R, B, D, and F, for the
allegedly wrongful death of C. In March, 2020, shortly after the onset
of the COVID-19 pandemic, C went to the emergency room at a hospital
in Norwich complaining of a sore throat and a headache. The emergency
room staff suspected that C was experiencing a myocardial infarction.
Because the Norwich hospital did not have a cardiac catheterization
lab, C was transferred to Hartford Hospital, where such facilities are
available. At that hospital, C was examined by R, an interventional
cardiologist. H Co., however, had recently modified its protocols due
to the pandemic, and patients who were suspected of having COVID-
19 were not to be admitted to the hospital’s catheterization lab until
they tested negative for COVID-19, unless their physical symptoms dic-
tated the need for emergency catheterization. R was concerned that C
could have COVID-19 and doubted that she was suffering from a myocar-
dial infarction, insofar as he believed that C’s symptoms were most
consistent with COVID-19 induced myocarditis or myopericarditis rather
than a myocardial infarction. Accordingly, R developed a treatment plan
pursuant to which C would be tested for COVID-19 and her admission
to the catheterization lab would be deferred pending the receipt of a
negative COVID-19 test result. A COVID-19 diagnostic test was adminis-
tered on March 21, 2020, and, while it was in process over the next
several days, B, D, and F became involved in C’s care. On March 24,
2020, C’s test result came back as negative. F was the only physician
responsible for C’s care after the receipt of the negative test result. On
March 25, 2020, F ordered that C undergo a coronary angiogram in the
hospital’s catheterization lab, but C died of a myocardial infarction
before the procedure was administered. The plaintiff alleged that the
defendant physicians, and, through them, H Co., were negligent and
grossly negligent in their treatment of C, insofar as C died after she was
misdiagnosed as having non-life-threatening myocarditis or myopericar-
ditis, when she actually was suffering from a life-threatening myocardial
infarction. The defendants moved to dismiss the plaintiff’s action, claim-
ing that they were immune from liability and suit under Executive Order
No. 7V, § 6, which was issued by Governor Ned Lamont in April, 2020,
and which confers on health care professionals and health care facilities
‘‘immunity from suit for civil liability for any injury or death alleged to
have been sustained because of . . . acts or omissions undertaken in
good faith while providing health care services in support of the [s]tate’s
COVID-19 response . . . .’’ The defendants also claimed that they were
immune under the provision (42 U.S.C. § 247d-6d) of the federal Public
Readiness and Emergency Preparedness Act (PREP Act) that confers
immunity from suit and liability for injuries sustained as a result of the
application or use of certain pandemic countermeasures, such as COVID-
19 diagnostic tests. The trial court ultimately granted the motions to
dismiss with respect to the claims directed at the defendant physicians’
acts or omissions that occurred before the receipt of C’s negative COVID-
19 test result on March 24, 2020, but denied one of the motions to
dismiss with respect to claims directed at acts or omissions occurring
after that time. As to the immunity conferred under Executive Order
No. 7V, the court reasoned that, before the negative test result was
received, the defendant physicians were providing health care services
in support of the state’s response to the pandemic because, at that time,
they had a good faith belief that they may be treating an actual COVID-
19 patient, but the defendant physicians could not claim to be providing
health care services in support of the state’s COVID-19 response after
they received the negative test result. Similarly, with respect to the
immunity conferred under the PREP Act, which, unlike Executive Order
No. 7V, affords immunity for gross negligence, as well as negligence,
the trial court determined that the defendants were immune for only
those acts and omissions, whether negligent or grossly negligent, that
occurred before the receipt of the negative COVID-19 test result because
they related to, and arose out of, a COVID-19 diagnostic countermeasure,
namely, the administration of C’s COVID-19 diagnostic test. Accordingly,
because R, B, and D were not involved in C’s treatment after the receipt
of the negative COVID-19 test result, the court dismissed all of the claims
against them, leaving F as the only remaining individual defendant based
on his role in C’s care after the receipt of the negative COVID-19 test
result on March 24, 2020. The plaintiff, H Co., and F filed separate
appeals. On appeal, the plaintiff challenged the court’s dismissal of the
counts directed at R, B, and D, alleging negligence before C’s negative
COVID-19 test result was received. H Co. and F challenge the court’s
decision not to dismiss the plaintiff’s claims relating to acts or omissions
after the receipt of the negative COVID-19 test result. Held:
1. The trial court correctly determined that, under Executive Order No.
7V, the defendants were immune for any negligent acts or omissions
occurring before, but not after, the receipt of C’s negative COVID-19 test
result, and, therefore, the court properly dismissed the counts alleging
negligence against R, B, and D, and properly declined to dismiss the
count alleging negligence with respect to F’s acts or omissions after the
receipt of C’s negative COVID-19 test result:
a. This court concluded that Executive Order No. 7V, § 6, confers immu-
nity from suit and liability only for acts and omissions that are undertaken
in good faith and in connection with the provision of health care services
in support of the state’s COVID-19 response, which necessarily would
include those undertaken for the prevention, diagnosis, or treatment of
COVID-19, and that a health care provider or facility seeking immunity
under that provision is required to demonstrate a nexus between the
alleged negligence and the services rendered in support of the state’s
COVID-19 response.
In determining the scope of the immunity conferred by Executive Order
No. 7V, this court applied the usual principles of statutory interpretation
in construing the language of the executive order, and, because this court
determined that the provision therein conferring immunity to covered
individuals and facilities for ‘‘acts or omissions undertaken in good faith
while providing health care services in support of the [s]tate’s COVID-
19 response’’ was ambiguous, it looked to the circumstances surrounding
the order’s promulgation and to the public policy that the order was
designed to implement.
When Governor Lamont issued Executive Order No. 7V, the nature of
COVID-19 was poorly understood, the belief that hospitals were about
to be overwhelmed was widespread, and the evident purpose of the
immunity provision was to facilitate the implementation of certain poli-
cies that would augment Connecticut’s health care workforce by assuring
health care professionals and facilities that, in light of the uncertainties
surrounding the diagnosis, treatment, and prevention of COVID-19, and
in view of the compelling need to keep health care facilities open and
operating, they would not be held liable for their acts and omissions
undertaken in good faith and in support of the state’s COVID-19 response.
In light of the language of the immunity provision and the policies that
it was intended to advance, this court rejected both a narrow interpreta-
tion of Executive Order No. 7V, § 6, pursuant to which a health care
provider is immune from liability and suit only for acts or omissions
undertaken while treating a patient for COVID-19, and a broad interpreta-
tion, pursuant to which a health care provider is immune from liability and
suit for any acts or omissions undertaken while the provider’s services
coincide with the effective period of the declared public health emer-
gency, regardless of whether the acts or omissions are connected to
those services, and, instead, it adopted an interpretation between those
two ends of the spectrum pursuant to which immunity is conferred when
connected to the health care provider’s services in support of the state’s
COVID-19 response, even if the defendant was not treating the patient
for COVID-19.
This interpretation of Executive Order No. 7V, § 6, was supported by
the plain language in the second part of the immunity provision, providing
that the scope of the immunity includes, but is not limited to, ‘‘acts or
omissions undertaken because of a lack of resources, attributable to the
COVID-19 pandemic, that renders the health care professional or heath
care facility unable to provide the level or manner of care that otherwise
would have been required in the absence of the COVID-19 pandemic
and which resulted in the damages at issue,’’ insofar as that language
plainly requires the act or omission to have a connection to the COVID-
19 pandemic for immunity to apply, and construing the first part of
the immunity provision to require a similar nexus between the alleged
negligence and the COVID-19 pandemic created a harmonious and consis-
tent whole.
b. The plaintiff could not prevail on her claim that the trial court improp-
erly had dismissed the counts of her complaint alleging negligence with
respect to the defendant physicians’ acts or omissions occurring before
the receipt of C’s negative COVID-19 test result:
Notwithstanding the plaintiff’s argument that, but for the defendant physi-
cians’ alleged misdiagnosis, C’s COVID-19 status would have been
deemed irrelevant for purposes of the plaintiff’s negligence claim, and
the fact that, if C had been experiencing a myocardial infarction, the
defendant physicians should have promptly admitted her to the hospital’s
cardiac catheterization lab, the immunity conferred by Executive Order
No. 7V does not turn on whether the defendant physicians’ acts or
omissions were negligent but, rather, on whether those acts or omissions
had a connection to health care services provided in support of the
state’s COVID-19 response.
In the present case, the plaintiff offered no evidence to dispute the
affidavits submitted by the defendant physicians, in which they attested
that C’s COVID-19 status was a material factor in diagnosing C and
deciding on her treatment and care, the defendant physicians’ reliance
on the COVID-19 protocol instituted by H Co. underscored the fact
that their acts or omissions, regardless of whether they were negligent,
occurred in the course of providing health care services in support of
the state’s COVID-19 response, and the diagnosis and treatment of a
patient with health care complications that the provider believed in good
faith were caused by COVID-19 clearly constituted acts or omissions
connected to the provision of health care services in support of the
state’s COVID-19 response for purposes of Executive Order No. 7V.
Moreover, there was no merit to the plaintiff’s claim that Executive
Order No. 7V requires an objectively reasonable belief that the health
care provider’s provision of services was in support of the state’s COVID-
19 response, as the immunity provision therein includes no such require-
ment, and the plaintiff’s claim conflates the issues of immunity and
liability and fails to contemplate that, in the present case, the alleged
misdiagnosis of C and C’s COVID-19 status were inextricably linked,
insofar as the defendant physicians submitted undisputed evidence that
they believed that C’s symptoms were caused by COVID-19, and their
treatment plan was informed by that provisional diagnosis.
c. F and H Co. could not prevail on their claims that the trial court
incorrectly had determined that they were not immune under Executive
Order No. 7V for F’s allegedly negligent acts and omissions after the
receipt of C’s negative COVID-19 test result:
The receipt of C’s negative test result broke any meaningful connection
between F’s treatment of C and his provision of health care services in
support of the state’s COVID-19 response because, at that point, F simply
was providing treatment to a patient who, three days earlier, had received
test results possibly indicating a myocardial infarction, and, although
the provisional diagnosis of a possible COVID-19 infection had caused
the delay in diagnosing and treating C’s true condition, COVID-19 had
no bearing on the nature of the health care services that were rendered
after the negative test result was received, thereby rendering immunity
unavailable under the terms of Executive Order No. 7V for acts and
omissions occurring after that point in time.
Moreover, contrary to F’s and H Co.’s claims that COVID-19 continued
to bear on the nature of the health care services that F provided despite
the receipt of C’s negative COVID-19 test, the decisions made concerning
C’s care after COVID-19 had been ruled out were not dictated by the
COVID-19 diagnosis but, rather were the result of learning that C did
not have COVID-19 and the delay driven by suspicion of a COVID-19
induced condition having come to an end.
Furthermore, there was no merit to F’s claim that he and H Co. were
immune from liability because there was nothing that he reasonably
could have been expected to do to prevent C’s death once her negative
test result was received, as that claim conflated immunity and liability,
or his claim that this court’s conclusion would lead to an absurd result
by bifurcating the immunity analysis on the basis of whether the care
F provided occurred before or after the receipt of C’s COVID-19 test
result, and there was nothing in the record to support the contention of
H Co. that its COVID-19 protocol hampered the defendant physicians’
ability to provide treatment to C after the receipt of her negative COVID-
19 test result.
d. This court declined to address certain additional issues regarding the
governor’s statutory and constitutional authority to confer immunity
from suit and liability for medical malpractice:
Although the parties cited constitutional considerations in connection
with their arguments as to the scope of immunity afforded under Execu-
tive Order No. 7V, § 6, the plaintiff did not challenge the governor’s
authority to confer such immunity, and, although this court ordered
supplemental briefing on this issue and related issues, which were of a
sufficiently public character to warrant this court’s review, supplemental
briefing, in light of its limitations, did not provide a sufficiently robust
platform to address those issues.
Accordingly, this court assumed, without deciding, that the governor
was legally authorized to confer the immunity at issue through an execu-
tive order.
2. The trial court incorrectly concluded that, under the federal PREP Act,
the defendants were immune from suit and liability for their allegedly
negligent and grossly negligent acts or omissions occurring before the
receipt of C’s negative COVID-19 test result, and, accordingly, this court
reversed the trial court’s decision insofar as that court dismissed the
counts of the complaint alleging grossly negligent acts or omissions by
R, B, and D prior to the receipt of the negative COVID-19 test result:
a. The trial court incorrectly concluded that the defendants were immune
from suit and liability under the PREP Act for their conduct, including
their allegedly grossly negligent acts or omissions, occurring before the
receipt of the negative COVID-19 test result:
In determining whether PREP Act immunity applies, courts focus on the
claims as they are pleaded in the plaintiff’s complaint.
The immunity conferred by the PREP Act, as it relates to what constitutes
a covered countermeasure, is narrow in scope and far less encompassing
than the immunity conferred by Executive Order No. 7V, as the PREP
Act does not apply to all medical services provided in an attempt to
diagnose, treat, or prevent the spread of COVID-19, and, although a
countermeasure under the PREP Act includes the administration of a
COVID-19 diagnostic test, it does not include protocols or policies
designed or implemented for the prevention or control of COVID-19, such
as H Co.’s protocol with respect to the admission of patients suspected
of having COVID-19 to the hospital’s cardiac catheterization lab.
In the present case, the plaintiff alleged, inter alia, that the defendant
physicians were both negligent and grossly negligent in failing to diagnose
C with a myocardial infarction, and Executive Order No. 7V, § 6, does
not confer immunity for allegedly grossly negligent acts or omissions.
The mere fact that the defendant physicians administered and used a
COVID-19 test did not, in and of itself, dictate whether they should
proceed with treatment while the test result was pending, and that deci-
sion was driven, rather, by the defendant physicians’ provisional COVID-
19 diagnosis and H Co.’s protocol, and there would have been no delay
attributable to the defendant physicians if they had immediately diag-
nosed her with a myocardial infarction, despite suspecting that she suf-
fered from COVID-19, and had immediately admitted her to the hospital’s
cardiac catheterization lab while the COVID-19 test result was pending,
as the plaintiff alleged they should have done.
Accordingly, in light of the plaintiff’s allegations in her complaint, the
defendant physicians’ gross negligence was not causally related to and
did not arise out of the administration or use of the COVID-19 diagnostic
test within the meaning of the PREP Act.
b. The trial court correctly concluded that F and H Co. were not immune
from suit and liability under the PREP Act for F’s allegedly negligent
acts or omissions occurring after the receipt of C’s negative COVID-19
test result:
In light of this court’s conclusion that the PREP Act does not confer
immunity from suit and liability for the allegedly negligent conduct of
R, B, and D before the receipt of C’s negative COVID-19 test result, the
PREP Act did not afford F immunity for his allegedly negligent conduct
after receipt of the test result because, if there was no allegation of any
causal relationship between the administration of the COVID-19 test and
the plaintiff’s allegations of negligence relating to acts or omissions
before the receipt of the test result for purposes of the PREP Act, the
receipt of the test result could not have created such a connection.
Accordingly, the plaintiff was entitled to proceed on the counts of her
complaint alleging gross negligence as to all of the defendants and the
counts of her complaint alleging negligence as to F and H Co.
Argued April 27—officially released August 8, 2023*
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ alleged medical malpractice, brought to the Supe-
rior Court in the judicial district of Hartford, where the
court, Budzik, J., granted the motions to dismiss filed
by the named defendant et al. and the defendant Melissa
Ferraro-Borgida et al. and denied the motion to dismiss
filed by the defendant William J. Farrell, and the defen-
dant William J. Farrell, the named defendant and the
plaintiff filed separate appeals. Reversed in part; fur-
ther proceedings.
Richard A. O’Connor, with whom, on the brief, were
Michael G. Rigg and Rebecca N. Brindley, for the appel-
lant in SC 20763 (defendant William J. Farrell).
Wesley W. Horton, with whom were Brendan N.
Gooley and Kenneth J. Bartschi and, on the brief, John
C. Pitblado, Jonathan Friedler and Lauren Graham,
for the appellant in SC 20764 and the appellee in SC
20763 and SC 20765 (named defendant) and the appellee
in SC 20763, SC 20764, and SC 20765 (defendant
Asad Rizvi).
James P. Sexton, with whom were John R. Weikart
and, on the brief, Gail Oakley Pratt and Megan L. Wade,
for the appellant in SC 20765 and the appellee in SC
20763 and SC 20764 (plaintiff).
Stuart C. Johnson, with whom, on the brief, were
April H. Rosenkrantz and Andrew S. Wildstein, for
the appellees in SC 20765 (defendant Melissa Ferraro-
Borgida et al.).
Joshua Perry, solicitor general, with whom were
Michael K. Skold, deputy solicitor general, and, on the
brief, William Tong, attorney general, for the state of
Connecticut as amicus curiae.
Jennifer L. Cox and Jennifer A. Osowiecki filed a
brief for the Connecticut Hospital Association as ami-
cus curiae.
Bryan M. Killian filed a brief for the United States
Chamber of Commerce as amicus curiae.
Keith M. Blumenstock, David J. Robertson and Jean-
nine M. Foran filed a brief for Athena Health Care
Associates, Inc., as amicus curiae.
Opinion
ECKER, J. This court recently discussed the legality
of certain executive orders issued by Governor Ned
Lamont in response to the catastrophic effects of the
pandemic caused by the spread of the potentially fatal
coronavirus disease 2019 (COVID-19). See Casey v.
Lamont, 338 Conn. 479, 481–83, 258 A.3d 647 (2021).
The present appeals require us to consider the scope
and application of Executive Order No. 7V, which pur-
ports to confer immunity on health care providers in
connection with Governor Lamont’s March, 2020 decla-
ration of a public health emergency.1 We also must
address similar questions with respect to 42 U.S.C.
§ 247d-6d, a provision in the federal Public Readiness
and Emergency Preparedness Act (PREP Act) that con-
fers immunity from suit and liability for injuries sus-
tained as the result of the application or use of certain
pandemic countermeasures (e.g., COVID-19 diagnos-
tic tests).2
These issues arise in the context of a wrongful death
action filed by the plaintiff, Kristen Mills, the daughter
of the decedent, Cheryl Mills, and the executor of her
estate. The complaint alleges that the decedent died
after she was misdiagnosed as having a non-life-threat-
ening heart condition, when she actually was suffering
from a life-threatening heart condition. According to
the complaint, her death was the result of negligent and
grossly negligent medical care provided by the named
defendant, Hartford HealthCare Corporation, doing
business as Hartford Hospital (hospital), and the defen-
dant physicians, Asad Rizvi, Melissa Ferraro-Borgida,
Brett H. Duncan, and William J. Farrell.3 The defendants
moved to dismiss the complaint on the ground that they
were immune from suit and liability under Executive
Order No. 7V and the PREP Act in light of the role that
COVID-19 had played in their diagnosis and treatment
decisions. The trial court concluded that the defendants
had immunity under Executive Order No. 7V for the
allegedly negligent acts and omissions undertaken
before the receipt of the decedent’s negative COVID-
19 test result and immunity under the PREP Act for the
allegedly grossly negligent acts and omissions under-
taken during that same period. The court consequently
granted the motions to dismiss the counts against Rizvi,
Ferraro-Borgida, and Duncan. The court further con-
cluded, however, that the only physician responsible
for the decedent’s care after receipt of the negative
test result, Farrell, did not have immunity under either
Executive Order No. 7V or the PREP Act. The trial court
accordingly denied the motion to dismiss the counts
alleging negligence and gross negligence against Farrell.
In SC 20765, the plaintiff appeals from the trial court’s
judgment insofar as it granted the defendants’ motions
to dismiss. In SC 20763 and SC 20764, Farrell and the
hospital, respectively, appeal from the denial of their
motions to dismiss.4 We disagree with the trial court’s
conclusions only insofar as it determined that the defen-
dants were entitled to immunity under the PREP Act.
We therefore reverse the trial court’s judgment dismiss-
ing counts V, VI, and VII of the complaint. We affirm
the judgment in all other respects.
The following facts are taken primarily from the alle-
gations in the complaint, supplemented by certain addi-
tional facts contained in affidavits submitted by the
parties in connection with the motions to dismiss. See,
e.g., Carpenter v. Daar, 346 Conn. 80, 97–99 n.12, 287
A.3d 1027 (2023). On the morning of March 21, 2020,
the decedent, who worked as a registrar in the emer-
gency room at Backus Hospital (Backus) in Norwich,
went to the Backus emergency room complaining of
having a sore throat and a headache for the past few
days.5 She informed the staff about her medical history,
including the fact that she had a heart murmur and
needed a heart valve replacement. She denied feeling
any pain in her chest, arm or back, or any shortness of
breath at rest. In light of concerning indications on her
cardiac monitor, Backus staff had the decedent undergo
an electrocardiogram at approximately 12:08 p.m. That
test showed rapid atrial fibrillation and an ‘‘ST eleva-
tion.’’ Theresa Adams, an emergency medicine physi-
cian at Backus, suspected that the decedent was
experiencing an ‘‘ST elevation myocardial infarction’’
(STEMI) or, in common parlance, a heart attack.
A patient suffering from an acute STEMI should
receive coronary intervention in a cardiac catheteriza-
tion lab,6 ideally within ninety minutes. Because Backus
did not have the facilities to provide cardiac catheteriza-
tion, Adams called the hospital, where such facilities
are available for both diagnostic and interventional pur-
poses, to arrange for the decedent’s transfer.
The hospital had recently modified its protocols due
to concerns relating to the spread of COVID-19. One
such modification directed health care providers to
‘‘avoid admitting patients who were suspected of having
COVID-19 to [the hospital’s] cardiac catheterization lab
. . . until they had tested negative, unless their physi-
cal symptoms dictated the need for emergency catheter-
ization.’’7 (Emphasis added.) The purpose of the
modified protocol was to prevent the spread of COVID-
19 to other patients and staff and to conserve supplies
of personal protective equipment.
At approximately 12:12 p.m., Adams spoke to Rizvi,
the interventional cardiologist on call in the hospital’s
catheterization lab. In light of the notable absence of
cardiac symptoms in the decedent’s presentation, her
medical history, and her high risk of exposure to
COVID-19 based on her employment in a hospital emer-
gency room, Rizvi opined that the decedent did not
meet the criteria for transfer to the catheterization lab.
Rizvi expressed concern that the decedent could have
COVID-19 and doubted that she was suffering from a
STEMI. Rizvi recommended that the decedent be trans-
ferred to the hospital’s emergency room.
Before her transfer from Backus to the hospital at
approximately 1:14 p.m., the decedent’s troponin levels8
reached 8.6 nanograms per milliliter, and Backus emer-
gency department staff believed that the decedent was
critically ill with a high probability of imminent or life-
threatening deterioration. Updated medical information
was electronically relayed to Rizvi.
After the decedent’s transfer to the hospital, Rizvi
examined her and continued to suspect that she was
suffering from a COVID-19 induced condition. Rizvi was
aware that patients suffering from certain viruses,
including COVID-19, could present with an ST elevation
and abnormal troponin levels as the result of virus
induced myocarditis or myopericarditis, which are non-
life-threatening cardiac inflammatory conditions. Rizvi
developed a plan for the decedent’s treatment, pursuant
to which she would be tested for COVID-19, remain in
isolation pending receipt of the test result, and undergo
an echocardiogram. At approximately 3:27 p.m., Rizvi
recommended that admission to the catheterization lab
be deferred until COVID-19 could be ruled out.
Hospital staff administered a COVID-19 test to the
decedent at approximately 5:18 p.m. on March 21, 2020.
It was sent to a state laboratory for processing, which,
at that time, took several days.
Over the next two days, March 22 and 23, 2020, Fer-
raro-Borgida, Duncan, and Farrell, also cardiologists
working at the hospital, became involved in the care
of the decedent. Each agreed with Rizvi’s recommenda-
tion to defer the decedent’s transfer to the catheteriza-
tion lab pending receipt of her COVID-19 test because
her history and current presentation indicated to them
that she most likely was suffering from COVID-19
related myocarditis. Ferraro-Borgida noted in the dece-
dent’s chart that she was not suffering from chest pain
but from a sore throat and headache. Ferraro-Borgida
also noted that the decedent would need a ‘‘full [echo-
cardiogram] for evaluation of valves and cardiac [cathe-
terization] to assess coronary anatomy.’’ Duncan later
noted that the decedent ‘‘had absolutely no chest symp-
toms’’ and that her symptoms were ‘‘most consistent
with myocarditis.’’ He further noted that they were
‘‘[w]aiting for [COVID-19] testing to become negative
but [did] suggest cardiac catheterization before hospital
discharge.’’ Farrell, the last to examine the decedent
on March 23, 2020, noted that she was ‘‘asymptomatic
with no signs of heart failure or ongoing chest pain.’’
He also noted that, ‘‘[o]nce [the decedent has been]
ruled out for [a COVID-19] infection she will undergo
a right and left heart [catheterization]. [The decedent]
is frustrated by the delay but understands the rationale
for infectious disease evaluation . . . .’’
On March 24, at 7:40 p.m., the decedent’s COVID-19
test result was reported as negative. The next morning,
on March 25, 2020, at 6:06 a.m., Farrell ordered that the
decedent undergo a coronary angiogram in the catheter-
ization lab later that day. The purpose of the angiogram
was not to treat an acute STEMI but to evaluate the
decedent’s coronary anatomy. Before the angiogram
could be administered, however, the decedent suffered
‘‘a sudden [pulseless electrical activity] arrest’’ and died.
The decedent’s death certification listed the cause of
death as a myocardial infarction.
The plaintiff thereafter brought this wrongful death
action against the defendants pursuant to General Stat-
utes § 52-555. In an eight count complaint, the plaintiff
alleged that the individual defendants, and, through
them, the hospital, were negligent and grossly negligent
in their treatment of the decedent.9 The defendants filed
three separate motions to dismiss: one addressing the
counts against Rizvi, one addressing the counts against
Ferraro-Borgida and Duncan, and one addressing the
counts against Farrell. All of the defendants claimed
that they were immune from suit under Executive Order
No. 7V because their treatment of the decedent was
undertaken in good faith and in support of the state’s
COVID-19 response and that they were immune under
the PREP Act because the treatment was related to a
COVID-19 countermeasure.10 See footnotes 1 and 2 of
this opinion. The defendants offered, in support of their
motions, affidavits from each of the defendant physi-
cians and from Adam Steinberg, the hospital’s vice pres-
ident for medical affairs, as well as the decedent’s
hospital records. The plaintiff submitted an affidavit
from her medical expert, who attested that the defen-
dant physicians had misdiagnosed the decedent’s condi-
tion and that the standard, emergency treatment for a
STEMI, the condition actually suffered by the decedent,
had not changed, regardless of a patient’s COVID-19
status.
After the motions to dismiss were filed, the trial court
requested additional briefing on the issue of whether
receipt of the decedent’s negative COVID-19 test result
terminated any immunity conferred by Executive Order
No. 7V and the PREP Act. The defendants responded
that immunity was not terminated because the treat-
ment decisions made by Farrell after receipt of the
negative test result were dictated by the treatment plan
put in place when the decedent was admitted to the
hospital with a suspected COVID-19 infection. They sub-
mitted an additional affidavit by Farrell in support of
this claim.
The trial court issued a memorandum of decision,
concluding that receipt of the negative COVID-19 test
result marked the dividing line between immunity and
potential liability. The court reasoned that, ‘‘before [the
decedent’s] COVID-19 test came back negative, the
defendants were providing health care services in sup-
port of the state’s response to the pandemic because,
at that time, the defendants had a good faith belief
that they may be treating an actual COVID-19 patient.’’
Accordingly, the court concluded that the defendants
were immune from suit and liability under Executive
Order No. 7V for their allegedly negligent acts or omis-
sions before receipt of the negative test result. The
court further concluded that, because ‘‘the defendants
[could] no longer claim [that] they were ‘providing
health care services in support of the [s]tate’s COVID-
19 response’ ’’ after receipt of the negative test result,
they were not entitled to immunity under the executive
order from suit and liability for negligent acts or omis-
sions occurring thereafter.
The trial court reached similar conclusions with
respect to immunity under the PREP Act, which, unlike
Executive Order No. 7V, provides immunity for gross
negligence. The court determined that the PREP Act
conferred immunity on the defendants for all acts and
omissions, negligent or grossly negligent, occurring
before receipt of the negative COVID-19 test result
‘‘because such claims plainly are related to, and arise
out of, a COVID-19 diagnostic countermeasure, specifi-
cally, [the decedent’s] COVID-19 test.’’ The court dis-
missed the claims of gross negligence arising from
conduct occurring before the receipt of the test result.
As with Executive Order No. 7V, the court concluded
that PREP Act immunity did not extend to acts or omis-
sions occurring after receipt of the test result because,
‘‘by that time, [the decedent’s] COVID-19 diagnostic
tests were at an end.’’
To summarize, the trial court granted the defendants’
motions to dismiss with respect to the claims directed
at the defendants’ acts or omissions occurring before
7:40 p.m. on March 24, 2020. The court denied the
motions with respect to the claims directed at the defen-
dants’ acts or omissions occurring after that time.
The defendants filed motions for clarification, in
which they pointed out that there was no dispute that
Rizvi, Ferraro-Borgida, and Duncan had not been
involved in the decedent’s treatment after receipt of
the negative COVID-19 test result and, therefore, that
the claims against those defendants must or should
have been dismissed in their entirety. The plaintiff con-
sented to the motions. The trial court granted the
motions and rendered judgment dismissing all of the
claims against Rizvi, Ferraro-Borgida, and Duncan, leav-
ing Farrell as the only remaining individual defendant
based on his role in the decedent’s care after 7:40 p.m.
on March 24, 2020.
The plaintiff appealed insofar as the trial court dis-
missed the counts pertaining to the defendants’ acts
or omissions before receipt of the decedent’s negative
COVID-19 test result. Farrell and the hospital separately
appealed from the trial court’s decision denying in part
their motions to dismiss with respect to acts or omis-
sions after receipt of the negative COVID-19 test result.11
Resolution of each of these appeals turns on the ques-
tion of whether the trial court properly construed and
applied the immunity provisions of Executive Order
No. 7V and the PREP Act.
Our review of the trial court’s decision is guided by
well established principles. We previously have recog-
nized that ‘‘[t]rial courts addressing motions to dismiss
for lack of subject matter jurisdiction pursuant to [Prac-
tice Book § 10-30 (a) (1)] may encounter different situa-
tions, depending on the status of the record in the case.
. . . [I]f [as here] the complaint is supplemented by
undisputed facts established by affidavits submitted in
support of the motion to dismiss . . . the trial court,
in determining the jurisdictional issue, may consider
these supplementary undisputed facts and need not
conclusively presume the validity of the allegations of
the complaint. . . . Rather, those allegations are tem-
pered by the light shed on them by the [supplementary
undisputed facts]. . . . If affidavits [or] other evidence
submitted in support of a defendant’s motion to dismiss
conclusively establish[es] that jurisdiction is lacking,
and the plaintiff fails to undermine this conclusion with
counteraffidavits; see Practice Book § [10-30 (a)]; or
other evidence, the trial court may dismiss the action
without further proceedings.’’ (Citation omitted; inter-
nal quotation marks omitted.) Carpenter v. Daar, supra,
346 Conn. 98 n.12. Conversely, if the allegations of the
complaint and the supplementary facts produced by
the defendant do not conclusively establish that juris-
diction is lacking, the court must deny the motion to
dismiss. Unless the resolution of the motion to dismiss
has required the trial court to resolve factual disputes,
our review of a trial court’s ruling on a motion to dismiss
is plenary. See id., 97, 98 n.12.
I
EXECUTIVE ORDER NO. 7V
We begin with the challenges to the trial court’s deci-
sion involving the claims of immunity under Executive
Order No. 7V. Our first task is to determine the scope
of the immunity conferred by the executive order and
then to apply that interpretation to the allegations in
the complaint and the supplementary undisputed facts.
We have not previously addressed the principles that
govern our interpretation of executive orders. The
Appellate Court has held that ‘‘[a]pplying the principles
of statutory interpretation to [an] executive order is
[appropriate] because [such an] order has the full force
and effect of law.’’ Prime Management, LLC v. Arthur,
217 Conn. App. 737, 750, 290 A.3d 401 (2023);12 see
General Statutes § 28-9 (b) (1) (any order issued by
governor pursuant to § 28-9 (b) ‘‘shall have the full force
and effect of law upon the filing of the full text of such
order in the office of the Secretary of the State’’). Other
jurisdictions have applied the same reasoning. See Bas-
sidji v. Goe, 413 F.3d 928, 934 (9th Cir. 2005) (‘‘[a]s is
true of interpretation of statutes, the interpretation of
an [e]xecutive [o]rder begins with its text’’); United
States v. Abu Marzook, 412 F. Supp. 2d 913, 922 (N.D.
Ill. 2006) (‘‘[t]he [c]ourt interprets [e]xecutive [o]rders
in the same manner that it interprets statutes’’); Coble
v. Ventura County Health Care Agency, 73 Cal. App.
5th 417, 425, 288 Cal. Rptr. 3d 431 (2021) (‘‘[t]he con-
struction of an executive order presents an issue akin
to an issue of statutory interpretation—one that pre-
sumably presents a question of law for our independent
review on appeal’’ (internal quotation marks omitted));
In re Murack, 957 N.W.2d 124, 128 (Minn. App. 2021)
(applying principles of statutory interpretation to emer-
gency executive orders); SRI Eleven 1407 Broadway
Operator, LLC v. Mega Wear, Inc., 71 Misc. 3d 779, 795,
144 N.Y.S.3d 289 (2021) (‘‘[a]s is true of interpretation
of statutes, the interpretation of an [e]xecutive [o]rder
begins with its text, which must be construed consis-
tently with the [o]rder’s object and policy’’ (internal
quotation marks omitted)). We find the reasoning of
these cases persuasive and, therefore, apply the usual
principles of statutory interpretation to our construc-
tion of Executive Order No. 7V.
Section 6 of Executive Order No. 7V provides in rele-
vant part: ‘‘Notwithstanding any provision of the Con-
necticut General Statutes or any other state law,
including the common law, or any associated regula-
tions, rules, policies, or procedures, any health care
professional or health care facility shall be immune
from suit for civil liability for any injury or death alleged
to have been sustained because of the individual’s or
health care facility’s acts or omissions undertaken in
good faith while providing health care services in sup-
port of the [s]tate’s COVID-19 response, including but
not limited to acts or omissions undertaken because
of a lack of resources, attributable to the COVID-19
pandemic, that renders the health care professional or
health care facility unable to provide the level or manner
of care that otherwise would have been required in the
absence of the COVID-19 pandemic and which resulted
in the damages at issue . . . .’’ This immunity does not
extend to, among other things, ‘‘acts or omissions that
constitute . . . gross negligence . . . .’’ Executive
Order No. 7V, § 6 (April 7, 2020). The immunity was
deemed applicable to acts or omissions occurring at
any time during the public health and civil preparedness
emergency declared on March 10, 2020.
The sentence conferring immunity contains two basic
parts, connected by the phrase ‘‘including but not lim-
ited to . . . .’’ Id. Because the defendants in this case
do not claim immunity under the second part of this
provision, relating to a lack of resources, we focus
our attention primarily on the immunity conferred to
covered individuals and facilities for ‘‘acts or omissions
undertaken in good faith while providing health care
services in support of the [s]tate’s COVID-19 response
. . . .’’13 Id. Moreover, because the plaintiff does not
contest the element of good faith, our specific focus is
on the requirement that the injury or death be sustained
because of the individual’s or health care facility’s acts
or omissions ‘‘while providing health care services in
support of the [s]tate’s COVID-19 response . . . .’’ Id.
Both sides advance arguments as to why this phrase
does or does not apply to the particular facts in the
present case, but neither party has clearly articulated
a general meaning that they ascribe to the phrase. We
therefore consider the broad contours of this phrase
before considering the parties’ context specific argu-
ments.
The text is reasonably susceptible to a range of rea-
sonable interpretations. The narrowest interpretation
would understand the phrase ‘‘while providing health care
services in support of the [s]tate’s COVID-19 response’’
to mean that a health care provider is immune from
suit and liability only for acts or omissions undertaken
while treating the injured party for COVID-19. Under the
broadest interpretation, the phrase reasonably could
mean that a health care provider is immune from suit
and liability for any acts or omissions undertaken during
the period in which the health care provider is providing
services in support of the state’s COVID-19 response
(i.e., while those services coincide with the effective
period of the declared public health emergency), regard-
less of whether the acts or omissions are connected to
those services. Between these two extremes, the phrase
also reasonably could mean that immunity applies when
the acts or omissions causing the injury were connected
to the health care provider’s services in support of the
state’s COVID-19 response, even if the health care pro-
vider was not treating the injured party for COVID-19.
Because the immunity provision of Executive Order
No. 7V is ambiguous, we look for interpretive guidance
to the circumstances surrounding its promulgation and
to the public policy that it was designed to implement.
Cf. State v. Pond, 315 Conn. 451, 467, 108 A.3d 1083(2015) (‘‘[w]hen a statute is not plain and unambiguous,
we . . . look for interpretive guidance to the . . . cir-
cumstances surrounding its enactment . . . [and] to
the legislative policy it was designed to implement’’
(internal quotation marks omitted)).
The circumstances existing at the beginning of the
worldwide COVID-19 pandemic are well known. Although
it was clear by early 2020 that COVID-19 was a danger-
ous and highly contagious disease, the mechanisms of
the disease, its symptomatology, the methods by which
the virus spread, and effective strategies for treatment,
control, and prevention were all poorly understood.
See Fraihat v. United States Immigration & Customs
Enforcement, 16 F.4th 613, 619 (9th Cir. 2021) (observ-
ing that steps taken by United States Immigration and
Customs Enforcement at outset of pandemic were
taken ‘‘in the face of scientific uncertainty and a con-
stantly developing understanding of COVID-19’’);
United States v. Olsen, 622 F. Supp. 3d 856, 862 (C.D.
Cal. 2022) (observing that ‘‘COVID-19 [thrust] the world
into uncertainty and fear’’); Democratic National Com-
mittee v. Bostelmann, 488 F. Supp. 3d 776, 787 (W.D.
Wis. 2020) (observing that, as of September, 2020,
‘‘[m]uch [was] still unknown about the [COVID-19] virus
and the . . . illness that it causes,’’ and that, as of Feb-
ruary and March, 2020, ‘‘even greater uncertainty sur-
rounded the extent, seriousness and nature of COVID-
19’’). At this time and at all times relevant to the present
case, no COVID-19 vaccine was yet available; see Dixon
v. De Blasio, 566 F. Supp. 3d 171, 177 and nn. 4–7
(E.D.N.Y. 2021), vacated on other grounds, United
States Court of Appeals, Docket No. 21-2666, 2022 WL
961191 (2d Cir. March 28, 2022); Lynch v. State, Superior
Court, judicial district of Hartford, Docket No. HHD-
CV-XX-XXXXXXX (September 11, 2020) (70 Conn. L. Rptr.
221, 221); and the most accurate form of testing for the
virus—the type ordered in the present case—typically
took several days to obtain results. See T. Li, ‘‘Privacy
in Pandemic: Law, Technology, and Public Health in
the COVID-19 Crisis,’’ 52 Loy. U. Chi. L.J. 767, 812 and
nn. 200–201 (2021).
It was widely believed in March, 2020, that medical
providers and hospitals throughout the United States
were about to be overwhelmed with COVID-19 patients.
See Lipsey v. Walmart, Inc., Docket No. 19 C 7681, 2020
WL 1322850, *3 (N.D. Ill. March 20, 2020) (observing
that ‘‘[the] public record [was] replete with references
to the impact that community spread of COVID-19 could
have, and [was] already having, on medical care provid-
ers, doctors, hospitals and staff’’); see id., citing C.
Griggs, ‘‘A New York Doctor’s Coronavirus Warning:
The Sky Is Falling,’’ N.Y. Times, March 19, 2020, avail-
able at https://www.nytimes.com/2020/03/19/opinion/
coronavirus-doctor-new-york.html (last visited August
7, 2023) (‘‘Today, at the hospital where I work, one of
the largest in New York City, [COVID-19] cases continue
to climb, and there’s movement to redeploy as many
health care workers as possible to the [emergency
rooms], new ‘fever clinics’ and [intensive care units].
It’s becoming an all-healthy-hands-on-deck scenario.’’),
and L. Schenker & D. Heinzmann, ‘‘How Illinois Hospitals
Are Preparing for a Flood of COVID-19 Patients,’’ Chi.
Trib., March 19, 2020, available at https://www.chicago-
tribune.com/coronavirus/ct-coronavirus-covid-hospitals-
illinois-chicago-20200318-n5vnqva3sng2jnxzgmmljkyybm-
story.html (last visited August 7, 2023) (‘‘[m]any [hospitals]
have started reassigning medical staff, canceling elec-
tive surgeries to save resources, moving testing for
COVID-19 outside typical patient areas and drawing up
plans for how to house large numbers of patients’’).14
Confronted with these circumstances, on March 10,
2020, Governor Lamont declared a public health emer-
gency and a civil preparedness emergency throughout
the state pursuant to General Statutes §§ 19a-131a and
28-9.15 See Casey v. Lamont, supra, 338 Conn. 483. He
thereafter issued a series of executive orders, including
Executive Orders Nos. 7U and 7V, both of which addressed
the health care crisis.16 Governor Lamont formally declared
that it was ‘‘necessary to supplement Connecticut’s
health care workforce and the capacity of health care
facilities to deliver [lifesaving] care by requesting the
assistances of health care professionals who [had] not
previously maintained liability coverage; facilitating the
deployment of volunteer and out-of-state professionals;
and calling [on health care] professionals to perform
acts that they would not perform in the ordinary course
of business . . . .’’ Executive Order No. 7U (April 5,
2020). Governor Lamont further determined that, ‘‘in
order to encourage maximum participation in efforts
to expeditiously expand Connecticut’s health care
workforce and facilities capacity, there exists a compel-
ling state interest in affording such professionals and
facilities protection against liability for good faith
actions taken in the course of their significant efforts
to assist in the state’s response to the current public
health and civil preparedness emergency . . . .’’ Id.The evident purpose of the immunity provision of Exec-
utive Order No. 7V was to facilitate the implementation
of these policies by assuring the relevant health care
professionals and facilities that, in light of the uncertain-
ties surrounding the diagnosis, treatment, and preven-
tion of COVID-19,17 and in view of the compelling need
to keep health care facilities open and operating, they
would not be held liable for such acts and omissions,
as long as they acted in good faith and in support of
the state’s COVID-19 response.
With this background in mind, we first consider the
narrowest interpretation of Executive Order No. 7V,
under which immunity is available only when the medi-
cal practitioner was treating the injured party for
COVID-19. We reject this interpretation because it
would fall far short of fulfilling the public policy under-
lying the order. It is not difficult to imagine ‘‘good faith
actions taken in the course of [health care workers’]
significant efforts to assist in the state’s response’’ to
the COVID-19 pandemic that could result in the injury
or death of persons who were not being treated for
COVID-19. Id. For example, if a patient sought treatment
in a hospital’s emergency department for a broken leg
and contracted a COVID-19 infection from another
patient who was being treated for COVID-19, we can
perceive no reason why Governor Lamont would have
wanted the hospital—which was making a good faith
effort to assist in the state’s COVID-19 response by
treating COVID-19 patients—to be held liable merely
because it was not treating the patient with the broken
leg for COVID-19. The purpose of Executive Order No.
7V was to allow health care facilities to provide such
services without the fear of being subjected to lawsuits.
At the other extreme, we also find unpersuasive an
expansive interpretation of Executive Order No. 7V that
provides immunity for all negligent acts or omissions
undertaken by health care professionals and facilities
during the period in which they were providing services
in support of the state’s COVID-19 response, regardless
of the connection between that act or omission and the
response to COVID-19. Such immunity would extend
to circumstances in which, for example, a patient under-
going a surgical procedure by a fully staffed, equipped,
and trained surgical team was injured as a result of
the surgeon’s negligence. We see no evidence that the
governor intended to provide immunity in such circum-
stances merely because the hospital also was providing
services in support of the state’s COVID-19 response
that had no material effect on the patient’s treatment.
Such a broad interpretation would raise other prob-
lems, as well. It would run afoul of the principle that
‘‘statutes in derogation of the common law are [to be]
strictly construed . . . .’’18 (Internal quotation marks
omitted.) Chadha v. Charlotte Hungerford Hospital,
272 Conn. 776, 789, 865 A.2d 1163 (2005). An immunity
that sweeps so broadly also may be of questionable
constitutionality on various grounds. For example,
when this court addressed the constitutional limits of
the authority granted to the governor under § 28-9 (b)
in Casey, we recognized that the governor’s statutory
authority under § 28-9 (b) (7) to ‘‘take such other steps
as are reasonably necessary in the light of [a declared
public health] emergency to protect the health, safety
and welfare of the people of the state’’ is constitutional
only to the extent that it authorizes the governor to
take steps that are necessary to protect the health,
safety, and welfare of the people from the dangers
‘‘implicated by this particular serious disaster. The gov-
ernor would not, for example, be able to issue an execu-
tive order forbidding restaurants from selling unhealthy
foods during the COVID-19 pandemic.’’ (Emphasis omitted.)
Casey v. Lamont, supra, 338 Conn. 508. We explained
that, if § 28-9 (b) (7) were interpreted as authorizing
the governor to issue executive orders that are not
necessary for that narrow purpose, the statute would be
an unconstitutional delegation of legislative authority
because there would be no limiting principle to guide
the exercise of that authority.19 See id., 504–505. The
broadest interpretation of Executive Order No. 7V would
thus be of questionable constitutionality because, among
other reasons, it would not be linked to the specific
dangers posed by the COVID-19 pandemic as identified
in Executive Order Nos. 7U and 7V, namely, the danger
that health care providers and facilities would be unable
to meet the expanded demand for services due to liabil-
ity concerns arising from the use of health care profes-
sionals who are not insured or do not have insurance
coverage in this state.
The interpretation between these two extremes mini-
mizes the foregoing concerns.20 An immunity that applies
when the acts or omissions that caused the injury are
connected to the health care provider’s services in sup-
port of the state’s COVID-19 response, even if the defen-
dant was not treating the injured party for COVID-19,
maintains a close fit between the grant of public health
emergency authority in § 28-9, the terms of the execu-
tive order, and the express policies underlying that
order.
We find additional textual support for this interpreta-
tion of the first part of the immunity provision when
we turn our attention to the second part of that provi-
sion. The provision states that the scope of the immunity
includes, but is not limited to, ‘‘acts or omissions under-
taken because of a lack of resources, attributable to
the COVID-19 pandemic, that renders the health care
professional or heath care facility unable to provide the
level or manner of care that otherwise would have been
required in the absence of the COVID-19 pandemic and
which resulted in the damages at issue . . . .’’ Execu-
tive Order No. 7V, § 6 (April 7, 2020). This language
plainly requires the act or omission to have a connection
to the COVID-19 pandemic for immunity to apply. Con-
struing the first part of the immunity provision to
require a similar nexus between the alleged negligence
and the COVID-19 pandemic thus creates a harmonious
and consistent whole. See, e.g., Harpaz v. Laidlaw
Transit, Inc., 286 Conn. 102, 130, 942 A.2d 396 (2008)
(‘‘[w]e are obligated to search for a construction of the
statute that makes a harmonious whole of its constit-
uent parts’’ (internal quotation marks omitted)).
Our interpretation also avoids the violation of a basic
canon of statutory interpretation that arises from a
broad interpretation of the ‘‘while providing health care
services’’ clause as conferring immunity for any acts or
omissions undertaken during the period in which the
health care provider is providing services in support of
the state’s COVID-19 response (i.e., the duration of the
public health emergency). If all a defendant has to do
to establish immunity under that clause is prove that the
pertinent act or omission occurred during the relevant
period when it was providing COVID-19 support ser-
vices, and is not required to establish that the act or
omission was connected to the provision of those ser-
vices, then the specific circumstances that fall within
the ‘‘including but not limited to’’ clause would be ren-
dered entirely superfluous. See, e.g., American Promo-
tional Events, Inc. v. Blumenthal, 285 Conn. 192, 203,
937 A.2d 1184 (2008) (‘‘[i]nterpreting a statute to render
some of its language superfluous violates cardinal prin-
ciples of statutory interpretation’’). The nature of or
reason for the act or omission (a lack of resources or
any other relevant reason) would not matter, only when
it occurred.
We therefore conclude, subject to the caveat that we
articulate in part I C of this opinion, that § 6 of Executive
Order No. 7V confers immunity from suit and liability
only for acts and omissions that are undertaken in good
faith and in connection with the provision of such ser-
vices. Health care services in support of the state’s
COVID-19 response necessarily would include those
undertaken for the prevention, diagnosis, or treatment
of COVID-19. The language of the immunity provision
and the policies the immunity is expressly intended to
advance require a defendant to demonstrate a nexus
between the alleged negligence and the services ren-
dered in support of the state’s COVID-19 response.
Mindful of these broad contours of the part of the immu-
nity provision at issue, we now turn to the parties’
arguments as to its application to the present circum-
stances.
A
The plaintiff contends in her appeal that the trial
court should not have found against her as to the events
prior to receipt of the negative COVID-19 test result be-
cause COVID-19 is irrelevant to the negligence alleged
in her complaint, which rests on her claim that the
defendants caused the decedent’s death as a result of
their misdiagnoses of her medical condition and their
corresponding failure to render proper treatment. The
plaintiff asserts that, ‘‘but for the misdiagnosis, [the
decedent’s] COVID-19 status would have been consid-
ered irrelevant, and the fact that she was experiencing
a STEMI would have compelled the defendants to get
her into the [catheterization] lab quickly.’’ The plaintiff
accepts that this misdiagnosis could have been a prod-
uct of the defendants’ subjective, good faith belief that
the decedent likely was suffering from a COVID-19
induced heart condition. She contends, however, that
the defendants would be entitled to immunity only if
they reasonably believed that the decedent’s COVID-
19 status was relevant to her diagnosis and treatment.
The plaintiff argues on the basis of this premise that
the defendants cannot establish that the acts or omis-
sions at issue were undertaken ‘‘while providing health
care services in support of the [s]tate’s COVID-19
response’’ for two related reasons: (1) under the hospi-
tal’s COVID-19 protocol, the determination of whether
a patient was exhibiting physical symptoms dictating
the need for emergency catheterization was made with-
out regard to the patient’s COVID-19 status, and (2) in
the absence of undisputed evidence proving otherwise,
the court was bound to assume the truth of the plaintiff’s
allegations that the defendants misdiagnosed the dece-
dent with myocarditis or myopericarditis rather than
a STEMI, and, thus, the delay in her transfer to the
catheterization lab for an emergency procedure was
not connected to the provision of health services in
support of the state’s COVID-19 response.21 We disagree.
The plaintiff has offered no evidence to call into dis-
pute the defendants’ affidavits attesting that the dece-
dent’s COVID-19 status was a material factor in their
diagnosis of the decedent and their decisions on her
treatment and care. The defendants recommended a
COVID-19 test to confirm or cast doubt on that diagno-
sis. Although the defendants’ immunity does not hinge
on the existence of the hospital’s COVID-19 protocol,
the fact that they deferred the decedent’s admission
to the catheterization lab in reliance on that protocol
underscores the fact that their acts or omissions, negli-
gent or not, occurred while providing health care ser-
vices in support of the state’s COVID-19 response. The
aim of that protocol was to protect patients from expo-
sure to the potentially deadly virus and to conserve
scarce personal protective equipment necessary to pro-
tect desperately needed staff. The diagnosis and treat-
ment of a patient with health care complications that
the health care provider believed in good faith to be
caused by COVID-19, as well as the prevention of the
spread of COVID-19 to other patients, clearly constitute
acts or omissions connected to the provision of health
care services in support of the state’s COVID-19 re-
sponse.
The plaintiff’s argument that the immunity provision
requires an objectively reasonable belief that the defen-
dants’ provision of services is in support of the state’s
COVID-19 response suffers from three principal flaws,
two legal and one factual in nature. First, although the
provision expressly imposes a good faith requirement,
it says nothing about the objective reasonableness of
that belief. Cf. General Statutes § 33-756 (a) (‘‘[e]ach
member of the board of directors, when discharging
the duties of a director, shall act: (1) [i]n good faith;
and (2) in a manner the director reasonably believes
to be in the best interests of the corporation’’). Second,
the defendants’ argument collapses the distinction
between immunity and liability by conflating two very
different issues, namely, (1) whether the defendants are
immune for their allegedly negligent acts and omissions,
and (2) whether the defendants were in fact negligent.
Under the plaintiff’s theory, the immunity would never
be necessary because a court could not determine that
the defendants are entitled to immunity unless it also
finds that there is no negligence (i.e., when the act or
omission at issue was found to be objectively reason-
able and, thus, no liability would attach). Third, and
most important, the plaintiff’s position fails to appreci-
ate that, in the present case, the alleged misdiagnosis
and the decedent’s COVID-19 status were inextricably
intertwined—the defendants submitted undisputed evi-
dence that they believed that the decedent’s symptoms
were caused by COVID-19, and their treatment plan
(including the delay in transferring her to the catheter-
ization lab) was informed by that provisional diagnosis.
The plaintiff contends that it is necessary to require
proof that the defendants’ misdiagnosis was objectively
reasonable because, otherwise, any defendant could
avoid liability in any case simply by asserting their sub-
jective, but unreasonable, belief that a patient had
COVID-19. This concern carries little weight. It ignores
the requirement of good faith, which may be disputed
in some cases (but is not in the present case). It also
overlooks the fact that there will be situations in which
a patient’s COVID-19 status will be irrelevant to the
care and treatment at issue. There will, in addition, be
cases in which a patient alleges that the defendants’
acts or omissions constitute gross negligence or wilful
misconduct, both of which are outside the scope of the
immunity afforded under the executive order.
Mindful of the caveat we articulate in part I C of
this opinion, we conclude that the trial court properly
dismissed the counts alleging negligence for acts or
omissions occurring before receipt of the decedent’s
negative COVID-19 test result (i.e., counts I, II, and III
of the complaint).
B
Farrell and the hospital claim in their appeals that
the trial court incorrectly determined that the immunity
conferred by Executive Order No. 7V does not apply
to Farrell’s acts and omissions after the receipt of the
decedent’s negative COVID-19 test result. They contend
that the treatment that Farrell provided after that time
was dictated entirely by the treatment that had been
prescribed when the decedent was initially admitted to
the hospital, and nothing that they could have done
after receipt of the test result could have prevented
the decedent’s death. More particularly, the hospital
contends that Governor Lamont did not ‘‘intend for
frontline health care professionals to be sued for adher-
ing to a plan dictated by COVID-19 and put in place
before they ever saw the patient. Such results would
be inconsistent with Governor Lamont’s purposes to
encourage providers to take whatever action [was]
needed to combat the pandemic and to expand the
health care workforce because it would discourage par-
ticipation rather than encourage it and encourage
wasteful, defensive medicine.’’ Farrell likewise con-
tends that ‘‘it would be incongruous to interpret the
scope of the executive order as being limited solely to
the care and treatment of patients [who] test positive
for COVID-19. . . . If the governor meant to limit the
scope of immunity to the treatment of COVID-19 posi-
tive patients only, he could have done so but chose not
to as a policy matter.’’ We disagree.
Under the circumstances of this case, receipt of the
test result broke any meaningful connection between
Farrell’s treatment of the decedent and his provision
of health care services in support of the state’s COVID-
19 response. At that point, Farrell simply was providing
treatment to a patient who, three days earlier, had
received test results possibly indicating a STEMI.
Although the clinical diagnosis of a possible COVID-19
infection had caused the delay in diagnosing and treat-
ing the decedent’s true condition, COVID-19 had no
bearing on the nature of the health care services that
were rendered after 7:40 p.m. on March 24, 2020. There-
fore, immunity was no longer available under the terms
of Executive Order No. 7V.
Farrell and the hospital dispute this conclusion,
arguing that COVID-19 did bear on the nature of the
health care services that Farrell provided after receipt
of the negative COVID-19 test. They argue that Farrell’s
treatment of the decedent was entirely dictated by the
treatment decisions that were made when the decedent
was admitted to the hospital with a clinical diagnosis
of possible COVID-19. To support this claim, they rely
on Farrell’s affidavit, in which he stated that his order
at 6:06 a.m. on March 25, 2020, directing that the dece-
dent be admitted to the catheterization lab, ‘‘was not a
new treatment decision and plan, but rather was [the]
completion of the treatment plan established on March
21, 2020, dictated as a result of COVID-19 concerns
of myocarditis simulating a STEMI presentation and
concerns of COVID-19 exposure and spread risk,’’ and
that, ‘‘[a]s of the time of [his] care and treatment, the
initial event, whatever it was, was a completed event.’’
Farrell further contends that, by the time the defendants
received the negative test result, there was no treatment
that they reasonably could have been expected to pro-
vide that would have reversed the completed cardiac
event that the decedent had suffered on March 21, 2020,
or prevented her death.
Neither of these arguments is persuasive. First, the
decisions that were made concerning the decedent’s treat-
ment once COVID-19 was ruled out were not ‘‘dictated
by’’ the clinical COVID-19 diagnosis but, rather, were
the result of learning that the decedent did not have
COVID-19 and the delay driven by suspicion of a COVID-
19 induced condition having come to an end. COVID-
19 had no apparent bearing on the treatment of the
decedent’s heart condition as of 7:40 p.m. on March 24,
2020. Second, with respect to the contention that the
defendants are immune from suit and liability for Far-
rell’s acts and omissions occurring after the receipt of
the negative test result because there was nothing that
he reasonably could have been expected to do at that
point to prevent the decedent’s death, the claim con-
flates immunity with liability by arguing, in effect, that
they are immune because Farrell was not negligent.22
As we previously explained in part I A of this opinion,
the immunity conferred by Executive Order No. 7V does
not turn on whether the defendants’ acts or omissions
were negligent but on whether their acts or omissions
had a connection to health care services provided in
support of the state’s COVID-19 response. There is no
such connection with respect to events after receipt of
the negative COVID-19 test.
Farrell contends that our conclusion would lead to an
absurd result because he provided care for the decedent
both before and after receipt of the test, and it makes
no sense to bifurcate the immunity analysis under these
circumstances. He points out that, ‘‘[a]lthough the [trial]
court found that . . . Farrell had immunity for follow-
ing the established plan of care put in place [when] he
became involved in the case, it also [found] that he did
not have immunity for following that same established
plan of care after receipt of the negative COVID-19 test.’’
This contention overlooks that the facts changed upon
receipt of the test result. Once COVID-19 was ruled
out as a cause of the decedent’s heart condition, the
treatment of her heart condition going forward was
not being provided in support of the state’s COVID-19
response and, therefore, was not within the scope of
the immunity conferred by Executive Order No. 7V.
Moreover, contrary to the premise of Farrell’s con-
tention, the plaintiff is seeking to hold the defendants
liable for the acts that they actually undertook or failed
to undertake in treating the decedent, not for devising
a treatment plan for what would happen if the decedent
received a negative COVID-19 test result. Regardless of
who initially devised the treatment plan in the event
that the result came back negative, Farrell was the
physician who provided the treatment, and the plaintiff
seeks to hold him liable for his failure to provide the
treatment allegedly required by the applicable standard
of care.23
Taking a different tack, the hospital argues that the
defendants are entitled to immunity because the hospi-
tal’s COVID-19 protocols hampered the defendants’ abil-
ity to provide treatment to the decedent after receipt
of her negative COVID-19 test result. The hospital relies
on Steinberg’s statements in his affidavit that, ‘‘[d]uring
the [t]reatment [p]eriod, [the hospital] was engaged in
various steps to conserve personal protective equip-
ment . . . including, but not limited to, minimizing in-
person contact between patients and hospital personnel
and limiting the number of hospital personnel in contact
with patients suspected of having COVID-19,’’ and that
the hospital’s COVID-19 protocols required it to ‘‘avoid
administration of echocardiograms to patients who did
not demonstrate an absolute clinical need . . . .’’ There
is no support in the record establishing that the factors
identified by Steinberg played any role in hampering
the defendants’ treatment of the decedent after receipt
of the negative COVID-19 test result. None of the affida-
vits includes any such statement of fact.24
For the foregoing reasons, we conclude that the trial
court correctly determined that Farrell and, through
him, the hospital are not immune from suit and liability
under Executive Order No. 7V for the plaintiff’s claims
related to the health care services that they provided
to the decedent after receipt of her negative COVID-19
test result. It therefore properly denied Farrell’s motion
to dismiss on that ground.
C
We end our discussion regarding immunity under
Executive Order No. 7V with an important caveat. Our
role in the present appeal is limited to interpreting and
applying Executive Order No. 7V to the undisputed facts.
Although the parties have cited constitutional consider-
ations in connection with their arguments as to the
scope of immunity afforded under Executive Order No.
7V, the plaintiff has not challenged on appeal the gover-
nor’s statutory or constitutional authority to confer
immunity from liability for medical malpractice in the
first place.25 Cf. Casey v. Lamont, supra, 338 Conn. 483(holding that § 28-9 provided authority for governor
to issue certain executive orders and that statute so
construed passed constitutional muster). Given the
common-law nature of an action for medical malprac-
tice; see, e.g., Greenwald v. Van Handel, 311 Conn. 370,
383, 88 A.3d 467 (2014); Golden v. Johnson Memorial
Hospital, Inc., 66 Conn. App. 518, 534–36, 785 A.2d 234,
cert. denied, 259 Conn. 902, 789 A.2d 990 (2001); it
remains an open question whether § 28-9 (b) (1), which
authorizes the governor to ‘‘modify or suspend’’ a ‘‘stat-
ute, regulation or requirement,’’ permits the issuance
of an executive order modifying or suspending the
‘‘common law,’’ as Executive Order No. 7V purports to
do. See footnote 15 of this opinion (setting forth rele-
vant text of § 28-9 (b)). This omission naturally raises
a colorable question as to whether the legislature in
fact delegated such authority to the governor, and, if
not, whether any other source of authority supported
the order as to this matter. See F. Perry & M. Weismann,
‘‘Rationing Healthcare During a Pandemic: Shielding
Healthcare Providers from Tort Liability in Uncharted
Legal Territory,’’ 30 U. Miami Bus. L. Rev. 142, 174–79
(2021) (discussing whether gubernatorial executive
orders providing immunity shields raise enforceability
issues, including whether state governor is legally
authorized to issue executive order). Mindful that the
resolution of these issues not only would impact liability
arising from the COVID-19 pandemic but also could
provide useful guidance for responses to potential
future public health emergencies, we solicited supple-
mental briefs on whether this court could and should
address these important matters.26 The parties and the
responding amici curiae naturally took different views
on this matter.
Although these questions are of a sufficiently ‘‘public
character’’ to warrant this court initiating review; (emphasis
omitted) Blumberg Associates Worldwide, Inc. v.
Brown & Brown of Connecticut, Inc., 311 Conn. 123,
158, 84 A.3d 840 (2014); we have determined that their
resolution should await more appropriate circum-
stances. It is evident that the limitations of supplemental
briefing in this case do not afford a sufficiently robust
platform to address the legal issues raised sua sponte
by the court, including, but not limited to, whether
medical malpractice in a wrongful death action should
be characterized as statutory or common law in nature;
see Soto v. Bushmaster Firearms International, LLC,
331 Conn. 53, 104–105, 202 A.3d 262 (explaining that
wrongful death statute does not create new cause of
action and acknowledging derivative nature of wrongful
death action), cert. denied sub nom. Remington Arms
Co., LLC v. Soto, U.S. , 140 S. Ct. 513, 205 L.
Ed. 2d 317 (2019); whether such immunity would violate
the open courts provision of article first, § 10, of the
state constitution; see Lohnes v. Hospital of Saint
Raphael, 132 Conn. App. 68, 80–81, 31 A.3d 810 (2011)
(addressing whether statutory condition for bringing
medical malpractice action violated open courts provi-
sion), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012);
see also footnote 25 of this opinion; and whether the
common law could be abrogated through the modifica-
tion or suspension of statutes, especially when § 6 of
Executive Order No. 7V does not identify any statutes
or indicate that it intends to ‘‘modify’’ or ‘‘suspend’’ any
existing law, as directed in § 28-9 (b) (1). Cf. Executive
Order No. 7V, §§ 2 through 5 (April 7, 2020) (identifying
statutes to be ‘‘modified’’ and specifying nature of modi-
fication). We also are mindful of the concern that the
posture of the present case failed to afford a sufficient
opportunity for the development of an evidentiary
record that might be required for this court to properly
adjudicate these issues at this stage. Accordingly, in
our analysis of the issue as presented to us, we have
assumed, without deciding, that the governor was
legally authorized to create and confer the immunity at
issue in the present case, as provided in § 6 of Executive
Order No. 7V, and leave the resolution of that question
to another day.
II
FEDERAL PREP ACT
The question that remains is whether the plaintiff’s
claims that do not come within the scope of Executive
Order No. 7V nonetheless must be dismissed under
the immunity provision of the federal PREP Act. The
specific claims at issue are the count alleging negligence
against Farrell relating to treatment following receipt
of the negative COVID-19 test result, addressed in part
I B of this opinion, and the counts alleging gross negli-
gence as to all the defendants.27 As we will explain, the
scope of the immunity provided by the PREP Act is
different from—and much narrower than—that con-
ferred by Executive Order No. 7V and does not cover
the claims presently under consideration.
‘‘Congress enacted the PREP Act in 2005 [t]o encour-
age the expeditious development and deployment of
medical countermeasures during a public health emer-
gency by allowing the [United States Secretary of Health
and Human Services (secretary)] to limit legal liability
for losses relating to the administration of medical
countermeasures such as diagnostics, treatments, and
vaccines.’’ (Internal quotation marks omitted.) Cannon
v. Watermark Retirement Communities, Inc., 45 F.4th
137, 139 (D.C. Cir. 2022). ‘‘The immunity is triggered
by a declaration from the [s]ecretary identifying the
threat to public health, the period during which immu-
nity is in effect, and other particulars.’’ Id.The PREP Act provides in relevant part that ‘‘a cov-
ered person shall be immune from suit and liability
under Federal and State law with respect to all claims
for loss caused by, arising out of, relating to, or
resulting from the administration to or the use by an
individual of a covered countermeasure if a declaration
. . . has been issued with respect to such countermea-
sure.’’28 (Emphasis added.) 42 U.S.C. § 247d-6d (a) (1)
(2018). The immunity conferred by the PREP Act
‘‘applies to any claim for loss that has a causal relation-
ship with the administration to or use by an individ-
ual of a covered countermeasure, including a causal
relationship with the design, development, clinical test-
ing or investigation, manufacture, labeling, distribution,
formulation, packaging, marketing, promotion, sale,
purchase, donation, dispensing, prescribing, adminis-
tration, licensing, or use of such countermeasure.’’
(Emphasis added.) 42 U.S.C. § 247d-6d (a) (2) (B) (2018).
On March 10, 2020, the secretary issued a declaration
under the PREP Act in response to the COVID-19 pan-
demic. See Declaration Under the Public Readiness and
Emergency Preparedness Act for Medical Countermea-
sures Against COVID-19, 85 Fed. Reg. 15,198 (March
17, 2020) (PREP Act declaration). Although the PREP
Act does not define ‘‘administration of covered counter-
measures,’’ the PREP Act declaration defines that term
to include both the ‘‘physical provision of the counter-
measures to recipients’’ and ‘‘activities and decisions
directly relating to public and private delivery, distribu-
tion and dispensing of the countermeasures to recipi-
ents . . . [and] management and operation of
countermeasure programs . . . .’’ Id., 15,200. The sec-
retary subsequently amended the PREP Act declaration
for various purposes. The amended declaration defines
‘‘covered countermeasures’’ for COVID-19 to include
‘‘[a]ny antiviral, any drug, any biologic, any diagnostic,
any other device, any respiratory protective device, or
any vaccine manufactured, used, designed, developed,
modified, licensed, or procured . . . [t]o diagnose, mit-
igate, prevent, treat, or cure COVID-19 . . . .’’29 Elev-
enth Amendment to Declaration Under the Public
Readiness and Emergency Preparedness Act for Medi-
cal Countermeasures Against COVID-19, 88 Fed. Reg.
30,769, 30,774 (May 12, 2023) (amended PREP Act decla-
ration); see id., 30,774–75 (incorporating PREP Act’s
definition of ‘‘administration of covered counter-
measures’’).
There is no dispute in the present case that the
COVID-19 diagnostic test administered to the decedent
on March 21, 2020, constitutes a covered countermea-
sure for purposes of PREP Act immunity. Nor is there
any claim that any other covered countermeasure was
employed. The issue that we must decide is whether
the decedent’s death was a loss ‘‘caused by, arising out
of, relating to, or resulting from the administration to
or the use by an individual’’ of that covered countermea-
sure under the PREP Act. 42 U.S.C. § 247d-6d (a) (1)
(2018).
The construction and application of the PREP Act
present an issue of statutory interpretation subject to
plenary review. ‘‘With respect to the construction and
application of federal statutes, principles of comity and
consistency require us to follow the plain meaning rule
. . . . Under the [federal] plain meaning rule, [l]egisla-
tive history and other tools of interpretation may be
relied [on] only if the terms of the statute are ambiguous.
. . . If the text of a statute is ambiguous, then we must
construct an interpretation consistent with the primary
purpose of the statute as a whole. . . . Thus, our inter-
pretive process will begin by inquiring whether the plain
language of [the] statute, when given its ordinary, com-
mon meaning . . . is ambiguous. . . . In assessing
ambiguity, the meaning of the statute must be evaluated
not only by reference to the language itself but also in
the specific context in which that language is used, as
well as in the broader context of the statute as a whole.’’
(Citations omitted; internal quotation marks omitted.)
Soto v. Bushmaster Firearms International, LLC, supra,331 Conn. 117–18.
Application of the PREP Act to the COVID-19 pan-
demic has been explored by many federal and state
courts, and, although most of those decisions are inap-
posite, a few provide useful guidance in the present
case. The purpose of the PREP Act, as supplemented by
the amended PREP Act declaration, was to encourage
covered providers to implement covered countermea-
sures as quickly and broadly as reasonably possible
without fear of liability. See Estate of Maglioli v. Ando-
ver Subacute Rehabilitation Center I, 478 F. Supp. 3d
518, 529 (D.N.J. 2020) (‘‘The PREP Act, as amended, is
an emergency response to the pandemic. Its evident
purpose is to embolden caregivers, permitting them
to administer certain encouraged forms of care (listed
COVID-19 ‘countermeasures’) with the assurance that
they will not face liability for having done so.’’), aff’d
sub nom. Estate of Maglioli v. Alliance HC Holdings,
LLC, 16 F.4th 393 (3d Cir. 2021).
In determining whether PREP Act immunity applies
in a given case, courts focus on the claims of the plain-
tiff, as pleaded in the complaint. See, e.g., Coleman v.
Intensive Specialty Hospital, LLC, Docket No. 21-0370,
2022 WL 17779323, *4 (W.D. La. December 19, 2022)
(defendant could not assert immunity under PREP Act
when, ‘‘as plead[ed], the claim concern[ed] a failure to
follow prescribed treatment predating any COVID-19
diagnosis’’); Levert v. Montefiore Home, Docket No.
1:21-cv-02312, 2022 WL 4591253, *4 (N.D. Ohio Septem-
ber 30, 2022) (‘‘The [c]omplaint merely referencing
[COVID-19] testing . . . is not the equivalent of alleg-
ing improper use or administration of [COVID-19] diag-
nostic tests. . . . Thus, it cannot be said that [the]
[d]efendants’ fake test results related to the administra-
tion of a covered countermeasure.’’ (Internal quotation
marks omitted.)), aff’d, Docket No. 22-3876, 2023 WL
4536093 (6th Cir. July 13, 2023); Acra v. California
Magnolia Convalescent Hospital, Inc., Docket No.
EDCV-21-898-GW-SHKx, 2021 WL 2769041, *6 (C.D. Cal.
July 1, 2021) (defendants were not entitled to immunity
under PREP Act when, contrary to defendants’ claim,
plaintiffs did not ‘‘base their claims on [the defendants’]
purchasing, administration, dispensing, prescribing, dis-
tribution and use of countermeasures, such as facemasks
and other [personal protective] and testing equipment
to prevent or mitigate the spread of COVID-19’’ (internal
quotation marks omitted)), aff’d, Docket No. 21-55813,
2023 WL 4105198 (9th Cir. June 21, 2023); Gunter v.
CCRC OPCO-Freedom Square, LLC, Docket No. 8:20-
cv-1546-T-36TGW, 2020 WL 8461513, *4 (M.D. Fla. Octo-
ber 29, 2020) (‘‘[The] [p]laintiff does not assert any
theory of liability that is in any way related to the
[d]efendants’ physical provision of any countermea-
sure. Thus, the [c]ourt concludes [that the] [p]laintiff’s
claims do not fall within the scope of the PREP Act
. . . .’’ (Internal quotation marks omitted.)); Whitehead
v. Pine Haven Operating, LLC, 75 Misc. 3d 985, 991,
170 N.Y.S.3d 855 (2022) (‘‘[t]he PREP Act applies, and
preempts state claims and confers immunity, only where
the allegations are that the defendant dispensed or admin-
istered countermeasures improperly, causing injury’’).
Existing case law also makes it clear that the immu-
nity conferred by the PREP Act, as it relates to what
constitutes a covered countermeasure, is narrow in
scope and far less encompassing than the immunity
conferred by Executive Order No. 7V. See Estate of
Maglioli v. Andover Subacute Rehabilitation Center I,
supra, 478 F. Supp. 3d 532–33 (contrasting New Jersey
executive order, which, like Connecticut’s, provides
immunity from civil liability for any damages alleged
to have been sustained ‘‘as a result of an act or omission
undertaken in good faith in the course of providing
services in support of the [s]tate’s COVID-19 response,’’
with immunity under PREP Act, which ‘‘is far narrower’’
(emphasis omitted; internal quotation marks omitted)).
The PREP Act applies only to the ‘‘administration’’ of
a covered countermeasure. 42 U.S.C. § 247d-6d (a) (1)
(2018). Although ‘‘administration of the covered coun-
termeasure’’ is defined broadly to include both the
‘‘physical provision of the countermeasures to recipi-
ents’’ and ‘‘activities and decisions directly relating to
public and private delivery, distribution, and dispensing
of the countermeasures to recipients . . . [and] man-
agement and operation of countermeasure programs’’;
Declaration Under the Public Readiness and Emergency
Preparedness Act for Medical Countermeasures Against
COVID-19, supra, 85 Fed. Reg. 15,200; unlike Executive
Order No. 7V, the PREP Act does not apply to all medical
services provided in an attempt to diagnose, treat, or
prevent the spread of COVID-19. See Estate of Maglioli
v. Andover Subacute Rehabilitation Center I, supra,
533 (‘‘[t]he drafters of the PREP Act, if they had meant
to cover any negligent act or omission in the course of
providing [COVID-19 related] health care, could easily
have done so’’ (internal quotation marks omitted)).
In particular, and importantly, countermeasures do
not include protocols or policies designed or imple-
mented for the prevention or control of COVID-19. See
Crupi v. Heights of Summerlin, LLC, Docket No. 2:21-
cv-00954-GMN-DJA, 2022 WL 489857, *6 (D. Nev. Febru-
ary 17, 2022) (‘‘[A]n infection control program or
COVID-19 response policy is not a covered countermea-
sure. To put it simply, a program or policy is not a
product, drug, or device.’’), aff’d, Docket No. 22-15413,
2023 WL 4105306 (9th Cir. June 21, 2023); Whitehead
v. Pine Haven Operating, LLC, supra, 75 Misc. 3d 991(nursing home COVID-19 protocols, such as social dis-
tancing, restricting visitors, requiring residents and staff
to wear face coverings, screening staff and visitors, and
discontinuing group activities, did ‘‘not amount to the
administration of countermeasures under the PREP
Act’’).
A
We first address the plaintiff’s appeal insofar as it
challenges the trial court’s dismissal of the claims alleg-
ing gross negligence, in particular those counts relating
to acts or omissions prior to receipt of the test results
on the evening of May 24, 2022. With respect to those
allegations, the trial court concluded that ‘‘[t]he grava-
men of the [plaintiff’s] claim is that the defendants
delayed [the decedent’s] care for a heart attack because
the defendants mistakenly thought [the decedent] had
COVID-19. The reason why the defendants thought [the
decedent] had COVID-19 . . . arose out of and was
related to the fact that they were awaiting the results of
a COVID-19 diagnostic test, a covered countermeasure
under the PREP Act.’’ (Internal quotation marks omit-
ted.) Accordingly, the trial court concluded that the
defendants were immune under the PREP Act from
suit and liability for their conduct, including grossly
negligent acts or omissions, occurring before receipt
of the test results. We disagree with the trial court’s
reasoning and reverse this aspect of its decision.
The allegations in the complaint control our analysis.
The plaintiff alleged in her complaint, among other
things, that the individual defendants were grossly neg-
ligent in that they (1) ‘‘failed to timely diagnose [the
decedent] with a myocardial infarction,’’ despite vari-
ous test results that were indicative of that condition,
(2) ‘‘failed to immediately transfer [the decedent] to the
cardiac catheterization lab’’ for treatment and ‘‘caused
an unreasonable delay in delivering proper care and
treatment to [the decedent],’’ and (3) ‘‘failed to properly
monitor [the decedent], and left her alone in her room
when [they] knew or should have known she was suffer-
ing from a life-threatening condition.’’ The plaintiff did
not allege that the decedent’s death was caused by
the defendants’ improper administration, prescription,
dispensing, or use of the COVID-19 test. The plaintiff’s
claim, instead, is that the defendants were grossly negli-
gent because they failed to diagnose the decedent as
suffering from a STEMI and because, even if they rea-
sonably believed that the decedent’s symptoms were
caused by COVID-19, they failed to admit her immedi-
ately to the catheterization lab.30 We concluded in part
I of this opinion that the clinical COVID-19 diagnosis
and the hospital’s COVID-19 protocol, which resulted
in the delayed approval for the decedent’s admission
to the catheterization lab, were subject to the immunity
provision of Executive Order No. 7V because they were
undertaken in good faith and in support of the state’s
COVID-19 response. Neither the COVID-19 diagnosis
nor the protocol, however, was a covered countermea-
sure under the PREP Act. See, e.g., Crupi v. Heights
of Summerlin, LLC, supra, 2022 WL 489857, *6;
Whitehead v. Pine Haven Operating, LLC, supra, 75
Misc. 3d 991.
We recognize that the delay in treatment attendant
to the COVID-19 test may in fact have had a causal
relationship to the decedent’s death. Indeed, if the pro-
cessing of the test had been instantaneous or taken
little time—a matter beyond the defendants’ control—
the decedent might well have been admitted to the
catheterization lab immediately, which may have saved
her life (or, regardless of the outcome, eliminated the
claim of malpractice). But the mere fact that the defen-
dants administered and used a COVID-19 test did not,
in and of itself, dictate whether they should or should
not proceed with treatment while the test result was
pending. That decision was driven by the defendants’
clinical COVID-19 related diagnosis and the hospital’s
catheterization lab protocol. There would have been no
delay attributable to the defendants if they had immedi-
ately diagnosed her STEMI or, despite suspecting that
she suffered from COVID-19, had immediately admitted
her to the catheterization lab while the COVID-19 test
result was pending, as the plaintiff alleges they should
have done.31 Thus, as alleged by the plaintiff, the gross
negligence resulting in the decedent’s demise was not
causally related to, did not arise out of, and was not
related to the administration or use of the COVID-19
test within the meaning of the PREP Act.
The decision of the federal District Court in Goins
v. Saint Elizabeth Medical Center, Docket No. 22-91-
DLB-CJS, 2022 WL 17413570 (E.D. Ky. November 9,
2022), is instructive on this point. In that case, the plain-
tiff alleged that she developed certain health issues after
she received a COVID-19 vaccine. Id., *1. She further
alleged that, as a result of these health issues, she was
required to undergo multiple surgeries and other
courses of treatment, in the course of which several
of the defendants committed medical malpractice. Id.,
*1–2. The defendants contended that the plaintiff’s
claims were preempted by the PREP Act. Id., *4. The
District Court concluded that PREP Act immunity did
not apply to the plaintiff’s medical malpractice claims
arising from the defendants’ alleged negligence after
she received the COVID-19 vaccine because, although
the plaintiff alleged that the administration of the vac-
cine was a cause of her injuries, ‘‘none of her claims
[against the particular defendants who provided medi-
cal care to the plaintiff after she received the COVID-19
test], and most importantly, none of the facts asserted
alongside her claims, make[s] allegations regarding
[those defendants’] prescription, administration, or dis-
pensation of the vaccine.’’32 Id., *8. The District Court’s
analysis in Goins recognizes that the fact that a covered
countermeasure may have been a cause of the plaintiff’s
injuries does not mean that a defendant is entitled to
immunity under the PREP Act if the plaintiff has alleged
that the defendant engaged in tortious conduct that
constituted a distinct and independent cause of the
plaintiff’s injuries that itself has no causal relationship
to the countermeasure. Put another way, there is no
immunity for medical malpractice that does not involve
the administration or use of a countermeasure, even if
the countermeasure was employed during the plaintiff’s
treatment and had a distinct and independent causal
relationship with the loss. See id. (PREP Act immunity
did not apply because Goins was ‘‘an ordinary malprac-
tice suit brought under Kentucky law, by a Kentucky
plaintiff, against Kentucky defendants’’); see also Estate
of Maglioli v. Andover Subacute Rehabilitation Center
I, supra, 478 F. Supp. 3d 532 (PREP Act ‘‘leaves room
for ordinary claims of negligent or substandard care’’
relating to diagnosis and treatment of COVID-19); Wil-
helms v. ProMedica Health System, Inc., 205 N.E.3d
1159, 1166 (Ohio App.) (mere fact that countermeasure
was employed during treatment of COVID-19 did not
mean that plaintiff’s ‘‘loss or injuries [were] caused [by]
arose out of, related to, or resulted from the administra-
tion of or the use of the [countermeasure]’’), appeal
denied, 170 Ohio St. 3d 1420, 208 N.E.3d 855 (2023).
The foregoing analysis leads us to conclude that the
PREP Act does not provide immunity from suit and
liability for losses arising from the defendants’ treat-
ment of the decedent before the receipt of the negative
COVID-19 test result.
The defendants urge us to reach a contrary result in
reliance on the decision of the United States District
Court for the District of New Mexico in Storment v.
Walgreen, Co., Docket No. 1:21-cv-00898 MIS/CG, 2022
WL 2966607 (D.N.M. July 27, 2022).33 In Storment, the
plaintiff alleged that she received a COVID-19 vaccina-
tion at the defendant pharmacy. Id., *1. She became
dizzy after receiving the vaccine and saw no chairs
in the pharmacy that would allow her to sit until the
symptoms passed. Id. She sustained injuries after falling
as the result of her dizziness. Id. The defendant claimed
that it was immune from suit and liability for the plain-
tiff’s injuries under the PREP Act. Id. The District Court
concluded that, although ‘‘[t]his chain of events [was]
unfortunate and certainly deserving of a remedy . . .
it [could not] be divorced from the administration of a
covered countermeasure—the COVID-19 vaccine [that
the plaintiff] received.’’ Id., *3. Accordingly, the court
held that the defendants in Storment were immune from
suit and liability under the PREP Act. Id.
Storment is not on point because the plaintiff in that
case alleged that her injury was attributable to the
improper administration of a covered countermea-
sure—a COVID-19 vaccine. See id., *1. As we explained,
the plaintiff in the present case does not allege that the
decedent’s death was caused by, arose out of, or was
related to the improper administration or use of the
COVID-19 test but claims that the defendants were
grossly negligent when they failed to diagnose her
STEMI and to admit her immediately to the catheteriza-
tion lab. Moreover, application of the immunity con-
ferred by the PREP Act in Storment advanced the
purpose of the legislation, namely, to allow medical
providers to provide COVID-19 vaccines quickly and
broadly to the public without fear of being held liable
for any injuries attributable to them. If the plaintiff is
able to prove her allegations, no comparable policy is
advanced by the defendants’ conduct in the present
case.
B
We next address the defendants’ appeal challenging
the trial court’s determination that the PREP Act does
not provide immunity from the claims against Farrell
and the hospital involving events after they received
the decedent’s negative COVID-19 test result. The trial
court reasoned that receipt of the test result broke the
connection between the test and the medical treatment
provided to the decedent after the result became
known. We concluded in part II A of this opinion that
the PREP Act does not confer immunity from suit and
liability for the allegedly negligent conduct of Rizvi,
Ferraro-Borgida, and Duncan before the receipt of the
decedent’s negative COVID-19 test result. A fortiori, the
PREP Act does not provide immunity for the allegedly
negligent conduct of Farrell and the hospital after
receipt of the test result. If, as we have concluded, there
is no allegation of any causal relationship between the
administration of the COVID-19 test and the plaintiff’s
allegations of negligence before receipt of the test result
for purposes of the PREP Act, the receipt of the test
result could not have created such a connection. Indeed,
the defendants do not claim otherwise; they claim only
that the trial court incorrectly determined that the
receipt of the test result broke the connection between
the administration of the test and their allegedly negli-
gent conduct. We therefore uphold the determination
of the trial court that Farrell and the hospital are not
immune from suit and liability under the PREP Act for
their allegedly negligent conduct occurring after receipt
of the negative COVID-19 test on this alternative ground.
Finally, we pause to comment on a superficial but
ultimately illusory tension that may be perceived
between our analysis under the PREP Act, in which
the delay associated with the COVID-19 testing of the
decedent does not trigger any immunity, and our analy-
sis under Executive Order No. 7V, in which we conclude
that the defendants are entitled to immunity for the
period of time before the test result became known.
The difference in outcome arises because the respective
immunities are different in scope. Immunity under the
PREP Act hinges on there being a connection between
the allegedly tortious conduct and the administration
or use of a ‘‘covered countermeasure.’’ No such relation-
ship exists in the present case because the alleged mis-
diagnosis occurred irrespective of the administration
or use of the COVID-19 test, the only countermeasure
at issue. The administration and use of the COVID-19
test was not tortious. Nor did the ensuing delay cause
the only alleged tortious conduct, i.e., the misdiagnosis.
The mere fact that a covered countermeasure was
administered at some point does not, without more,
entitle a defendant to immunity under the PREP Act.34
Immunity under Executive Order No. 7V, by contrast,
hinges on the existence of a nexus between the alleged
misdiagnosis and the defendants’ provision of services
in support of the state’s COVID-19 response. Those ser-
vices plainly include the defendants’ diagnosis of a
COVID-19 related condition, regardless of whether that
diagnosis was, as the plaintiff claims, the result of negli-
gence. The defendants’ alleged misdiagnosis in the pres-
ent case was itself the provision of services in support
of the state’s COVID-19 response, thus triggering the
immunity for the period of time when that diagnosis
remained operative.
In light of our conclusions in parts I and II of this
opinion, the plaintiff is entitled to proceed on the counts
alleging gross negligence against all of the defendants
and the count alleging negligence against Farrell and
the hospital. The defendants’ arguments as to whether
the allegations are legally sufficient to support gross
negligence; see footnote 10 of this opinion; are matters
properly resolved by the trial court in further pro-
ceedings.
The decision of the trial court is reversed in part
insofar as it dismissed counts V, VI, and VII of the
complaint and the case is remanded with direction to
deny the motions to dismiss with respect to those
counts and for further proceedings according to law;
the decision of the trial court is affirmed in all other
respects.
In this opinion the other justices concurred.
* August 8, 2023, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Section 6 of Executive Order No. 7V provides in relevant part: ‘‘Notwith-
standing any provision of the Connecticut General Statutes or any other
state law, including the common law, or any associated regulations, rules,
policies, or procedures, any health care professional or health care facility
shall be immune from suit for civil liability for any injury or death alleged
to have been sustained because of the individual’s or health care facility’s
acts or omissions undertaken in good faith while providing health care
services in support of the [s]tate’s COVID-19 response, including but not
limited to acts or omissions undertaken because of a lack of resources,
attributable to the COVID-19 pandemic, that renders the health care profes-
sional or health care facility unable to provide the level or manner of care
that otherwise would have been required in the absence of the COVID-19
pandemic and which resulted in the damages at issue, provided that nothing
in this order shall remove or limit any immunity conferred by any provision
of the Connecticut General Statutes or other law. Such immunity shall not
extend to acts or omissions that constitute a crime, fraud, malice, gross
negligence, [wilful] misconduct, or would otherwise constitute a false claim
or prohibited act pursuant to [§] 4-275 et seq. of the Connecticut General
Statutes or 31 U.S.C. [§] 3729 et seq. . . . The immunity conferred by this
order applies to acts or omissions subject to this order occurring at any
time during the public health and civil preparedness emergency declared
on March 10, 2020, including any period of extension or renewal, including
acts or omissions occurring prior to the issuance of this order attributable
to the COVID-19 response effort.’’
The executive order defines the terms ‘‘health care professional’’ and
‘‘health care facility.’’ See Executive Order No. 7V, § 6 (April 7, 2020). There
is no dispute in the present case that the defendants fall within these terms.
2
Section 247d-6d of title 42 of the 2018 edition of the United States Code
provides in relevant part: ‘‘(a) Liability protections
‘‘(1) In general
‘‘Subject to the other provisions of this section, a covered person shall
be immune from suit and liability under Federal and State law with respect
to all claims for loss caused by, arising out of, relating to, or resulting from
the administration to or the use by an individual of a covered countermeasure
if a declaration under subsection (b) has been issued with respect to
such countermeasure.
‘‘(2) Scope of claims for loss
‘‘(A) Loss
‘‘For purposes of this section, the term ‘loss’ means any type of loss,
including—
‘‘(i) death;
‘‘(ii) physical, mental, or emotional injury, illness, disability, or condition;
‘‘(iii) fear of physical, mental, or emotional injury, illness, disability, or
condition, including any need for medical monitoring; and
‘‘(iv) loss of or damage to property, including business interruption loss.
‘‘Each of clauses (i) through (iv) applies without regard to the date of
the occurrence, presentation, or discovery of the loss described in the clause.
‘‘(B) Scope
‘‘The immunity under paragraph (1) applies to any claim for loss that has
a causal relationship with the administration to or use by an individual of
a covered countermeasure, including a causal relationship with the design,
development, clinical testing or investigation, manufacture, labeling, distri-
bution, formulation, packaging, marketing, promotion, sale, purchase, dona-
tion, dispensing, prescribing, administration, licensing, or use of such
countermeasure.
***
‘‘(d) Exception to immunity of covered persons
‘‘(1) In general
‘‘Subject to subsection (f), the sole exception to the immunity from suit
and liability of covered persons set forth in subsection (a) shall be for an
exclusive Federal cause of action against a covered person for death or
serious physical injury proximately caused by willful misconduct, as defined
pursuant to subsection (c), by such covered person. For purposes of section
2679 (b) (2) (B) of title 28, such a cause of action is not an action brought
for violation of a statute of the United States under which an action against
an individual is otherwise authorized. . . .’’
3
Each count of the complaint is brought against one of the defendant
physicians and the hospital. The hospital is being sued only for its derivative
liability for the acts of the defendant physicians, its employees or agents
(i.e., respondeat superior). We refer in this opinion only to the individual
defendants, unless there is a reason to mention the hospital.
4
The plaintiff, the hospital, and Farrell appealed separately to the Appel-
late Court. We then transferred the appeals to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1, and consolidated them.
5
The decedent’s medical records also indicate that she told the Backus
staff that her granddaughter recently had strep throat and that a rapid strep
test was performed on the decedent. The records do not indicate whether
the test result was negative, but we presume that to be the case.
6
Cardiac catheterization is a procedure used for various interventional
and diagnostic purposes. The standard procedure for an acute STEMI is a
‘‘primary percutaneous coronary intervention,’’ in which a balloon is inserted
and inflated to remedy blocked blood flow to the heart. See M. Ahmad et
al., Percutaneous Coronary Intervention (last updated September 30, 2022),
available at https://www.ncbi.nlm.nih.gov/books/NBK556123/ (last visited
August 7, 2023).
7
The defendants neither submitted a written copy of the protocol nor
quoted the text of the protocol in any of their affidavits. The quotation in the
body of this opinion accompanying this footnote is taken from a statement
in the affidavit of Adam Steinberg, the hospital’s vice president for medical
affairs. That statement is consistent with the description of the protocol in
the other defendants’ affidavits. There is no indication that the plaintiff
disputed the existence of this protocol or its contents.
8
Troponin is a protein in the blood, which normally ‘‘stays inside [the]
heart muscle’s cells, but damage to those cells—like the kind of damage
from a heart attack—causes troponin to leak into [the] blood. Higher levels
of troponin in [the] blood also mean[s] more heart damage, which can help
[health care] providers determine the severity of a heart attack.’’ Cleveland
Clinic, Troponin Test, available at https://my.clevelandclinic.org/health/diagnostics/
22770-troponin-test (last visited August 7, 2023).
9
Counts I though IV alleged negligence respectively against Rizvi, Ferraro-
Borgida, Duncan, and Farrell. Counts V though VIII alleged gross negligence
respectively against Rizvi, Ferraro-Borgida, Duncan, and Farrell.
10
The defendants also contended that the plaintiff’s claims of gross negli-
gence should be dismissed because they were simply relabeled negligence
claims and, therefore, were legally insufficient. The trial court did not address
this argument.
11
The decision dismissing all counts against Rizvi, Borgiga-Ferraro, and
Duncan is an immediately appealable final judgment. See Practice Book
§ 61-3. The trial court’s denial of the motion to dismiss the counts against
Farrell (i.e., counts IV and VIII) is not a final judgment but is nonetheless
immediately appealable under an exception to the final judgment rule for
a colorable claim of immunity from suit. See, e.g., Miller v. Egan, 265 Conn.
301, 303 n.2, 828 A.2d 549 (2003) (‘‘[t]he denial of a motion to dismiss based
on a colorable claim of . . . immunity . . . is an immediately appealable
final judgment because the order or action so concludes the rights of the
parties that further proceedings cannot affect them’’ (internal quotation
marks omitted)).
12
The Appellate Court in Prime Management, LLC v. Arthur, supra, 217
Conn. App. 737, further determined that the plain meaning rule set forth in
General Statutes § 1-2z applied to its interpretation of an executive order.
See id., 750–51. We have some doubt about this conclusion, not only because
§ 1-2z on its face applies only to statutes, but also because the judicial
interpretation of executive orders may involve different considerations than
those implicated when we interpret legislation. We need not determine in
the present case, however, whether construction of a clear and unambiguous
executive order would be subject to the constraints imposed by § 1-2z
because, for the reasons set forth subsequently in this part of the opinion,
we conclude that Executive Order No. 7V is ambiguous.
13
Although the defendants do not claim that they are immune from suit
and liability pursuant to the ‘‘lack of resources’’ portion of Executive Order
No. 7V, we will nevertheless construe both parts of the provision in this
opinion because we must ensure that nothing in the lack of resources portion
affects our construction of the first part of the sentence. The immunity is
set forth as an integrated whole, and its meaning must be understood as
such. ‘‘We are obligated to search for a construction of the statute that
makes a harmonious whole of its constituent parts.’’ (Internal quotation
marks omitted.) Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, 130, 942
A.2d 396 (2008). We also note that the ‘‘lack of resources’’ portion of the
executive order is directly at issue in another case that we also decide
today. See Manginelli v. Regency House of Wallingford, Inc., 347 Conn.
581, 585, A.3d (2023).
14
See also Lipsey v. Walmart, Inc., supra, 2020 WL 1322850, *3 n.1, citing
J. Daley, Like Emergency Medicine Special Forces, Colorado Doctors and
Nurses Get Ready To Combat Coronavirus, Colo. Pub. Radio News, March 15,
2020, available at https://www.cpr.org/2020/03/15/like-emergency-medicine-
special-forces-colorado-doctors-and-nurses-get-ready-to-combat-coronavirus/
(last visited August 7, 2023) (noting that Colorado ‘‘will allow medical profes-
sionals licensed in other states to immediately start practicing . . . bring
in contract nurses from out of state . . . tap into [medical] students and
faculty,’’ and ask ‘‘former health workers to consider coming back to work’’),
J. Lemon, ‘‘New York Governor Asks Retired Doctors and Nurses To Sign
Up and Be on Call Amid Coronavirus Crisis,’’ Newsweek, March 17, 2020,
available at https://www.newsweek.com/new-york-governor-asks-retired-
doctors-nurses-sign-call-amid-coronavirus-crisis-1492825 (last visited August 7,
2023) (‘‘New York’s Governor Andrew Cuomo called on retired medical
professionals to sign up to be on call to respond to the coronavirus pan-
demic’’), and L. Tanner, ‘‘US Hospitals Brace for ‘Tremendous Strain’ from
New Virus,’’ Associated Press News, March 13, 2020, available at https://
apnews.com/6c9b9686c4af21b9984341d330073979 (last visited August 7,
2023) (‘‘hospitals are setting up . . . triage tents, calling doctors out of
retirement, guarding their supplies of face masks and making plans to cancel
elective surgery as they brace for an expected onslaught of coronavirus
patients’’).
15
Section 19a-131a authorizes the governor to declare a public health
emergency. Section 28-9 (a) authorizes the governor to declare a civil pre-
paredness emergency, and § 28-9 (b) further provides in relevant part: ‘‘(1)
Following the Governor’s proclamation of a civil preparedness emergency
pursuant to subsection (a) of this section or declaration of a public health
emergency pursuant to section 19a-131a, the Governor may modify or sus-
pend in whole or in part, by order as hereinafter provided, any statute,
regulation or requirement or part thereof whenever the Governor finds such
statute, regulation or requirement, or part thereof, is in conflict with the
efficient and expeditious execution of civil preparedness functions or the
protection of the public health. The Governor shall specify in such order
the reason or reasons therefor and any statute, regulation or requirement
or part thereof to be modified or suspended and the period, not exceeding
six months unless sooner revoked, during which such order shall be
enforced. . . .
***
‘‘(7) The Governor may take such other steps as are reasonably necessary
in the light of the emergency to protect the health, safety and welfare of
the people of the state, to prevent or minimize loss or destruction of property
and to minimize the effects of hostile action. . . . ’’
16
Executive Order No. 7U contains an immunity provision, § 1, that is
identical to the one issued two days later in § 6 of Executive Order No. 7V,
except that the latter provision adds language stating that the immunity
applies notwithstanding ‘‘any other state law, including the common law
. . . .’’ (Emphasis added.) Executive Order No. 7V (April 7, 2020). Section
6 of Executive Order No. 7V superseded § 1 of Executive Order No. 7U, but
Executive Order No. 7V expressly states that the findings in Executive Order
No. 7U retain their effect, as do the remaining provisions. See id. The findings
in Executive Order No. 7V are entirely consistent with those in Executive
Order No. 7U.
17
Prevention of COVID-19 could apply to measures directed at protecting
an individual, as well as those directed to society generally or a class of indi-
viduals.
18
We recognize that the plaintiff brought the present lawsuit pursuant to
the wrongful death statute, § 52-555. Putting aside the question of whether
the plaintiffs’ negligence claims would be characterized as purely statutory or
common law in derivation; see Soto v. Bushmaster Firearms International,
LLC, 331 Conn. 53, 104–105, 202 A.3d 262, cert. denied sub nom. Remington
Arms Co., LLC v. Soto, U.S. , 140 S. Ct. 513, 205 L. Ed. 2d 317 (2019);
Executive Order No. 7V, § 6, explicitly applies to both common-law and
statutory claims, and we will not assume that the scope of the immunity
was intended to shrink or expand depending on whether the plaintiff is
asserting a common-law or statutory claim.
19
A similar concern would arise under § 28-9 (b) (1), which authorizes
the governor only to modify and suspend laws, regulations or requirements
that are ‘‘in conflict with the efficient and expeditious execution of civil
preparedness functions or the protection of the public health.’’ A different
constitutional concern would arise if an executive order exceeded the limits
of the authority conferred by § 28-9 (b)—an unconstitutional usurpation of
legislative authority. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 588–89, 72 S. Ct. 863, 96 L. Ed. 1153 (1952); see also, e.g., Bayshore
Enterprises, Inc. v. Murphy, Docket Nos. A-3616-19 and A-3873-19, 2021
WL 3120868, *9 (N.J. Super. App. Div. July 23, 2021) (acknowledging that
executive order issued in response to COVID-19 pandemic under New Jer-
sey’s Emergency Health Powers Act would be ‘‘invalid if it usurps legislative
authority by acting contrary to the express or implied will of the [l]egislature’’
(internal quotation marks omitted)).
20
In part I C of this opinion, we mention other potential concerns regarding
the sweep of immunity provided by Executive Order No. 7V.
21
The plaintiff claims that, if she is not entitled on the present record to
reversal of that portion of the trial court’s decision against her, we should
remand the case for an evidentiary hearing on the issue of whether the
defendants’ misdiagnosis was objectively reasonable. The plaintiff has not
directed this court’s attention to anywhere in the record where she made
such a request to the trial court. In any event, we reject the request in light
of our conclusion that immunity does not depend on whether the defendants’
misdiagnosis was objectively reasonable.
22
In her brief in the defendants’ appeals, the plaintiff vigorously denies
that the record establishes that the defendants could not reasonably have
been expected to do anything more than they did after the receipt of the
negative COVID-19 test result to prevent the decedent’s death. We need not
resolve this question because the dispute relates to liability, not immunity.
23
Farrell’s contention that his treatment plan for the decedent, after receipt
of the test results, was a reasonable one given the long passage of time
since she initially suffered an acute cardiac event goes to the question of
liability, not immunity; so, too, does his contention that his treatment plan
for the decedent conformed to the one endorsed by the other defendant phy-
sicians.
24
In response to the plaintiff’s assertion that the defendants could have
ordered an echocardiogram after receipt of the negative COVID-19 test
result, the hospital claims that the defendants could not have done so
because its COVID-19 protocol precluded that procedure in the absence of
an ‘‘absolute clinical need . . . .’’ (Emphasis omitted; internal quotation
marks omitted.) The record does not establish conclusively either that an
echocardiogram was the only reasonably possible treatment for the dece-
dent’s condition at that time or that she did not have an absolute clinical
need for one. The hospital also suggests that the defendants were required
to assume that the decedent suffered from COVID-19, even after receipt of
the negative test result. It is undisputed that all of the physicians who treated
the decedent contemplated that her treatment plan would change if she
tested negative for COVID-19, presumably because they believed that a
negative result would indicate that COVID-19 was not the cause of her
symptoms.
25
The plaintiff did raise a claim in the trial court that affording immunity
to the defendants in the present case would violate the open courts provision
of the state constitution. See Conn. Const., art. I, § 10. The trial court con-
cluded that this provision was inapplicable because the plaintiff’s claims
were brought pursuant to the wrongful death statute, § 52-555, and the
plaintiff did not challenge that determination on appeal.
26
This court invited amici curiae to file briefs in the present case and a
related case, Manginelli v. Regency House of Wallingford, Inc., 347 Conn.
581, A.3d (2023); see footnote 13 of this opinion; to address the
following questions, on which the parties were ordered to submit supplemen-
tal briefs:
‘‘1. Does this case present an exceptional circumstance for this court to
invoke its authority under [Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc.], 311 Conn. 123, 84 A.3d 840 (2014), to raise and
decide the issues identified below, which were not addressed by the parties?
‘‘2. If the answer to the first question is ‘yes,’ does the governor have the
authority under . . . § 28-9 (b) (1) or (7) and/or Casey v. Lamont, [supra,
338 Conn. 479], to suspend the common law?
‘‘3. If the answer to the second question is ‘no,’ what was the source of
the governor’s authority to enact [§] 6 of Executive Order [No.] 7V?
‘‘4. Under . . . § 28-9 (b) (1) or (7) and/or Casey . . . does the governor
have the authority to create and confer immunity through an executive
order?’’
27
The immunity conferred by Executive Order No. 7V does not cover
gross negligence. See Executive Order No. 7V, § 6 (April 7, 2000).
28
There is no claim in the present case that the defendant physicians are
not covered persons under the PREP Act. See 42 U.S.C. § 247d-6d (i) (2)
(B) (iv) (2018) (defining ‘‘covered person’’ to include ‘‘a qualified person
who prescribed, administered, or dispensed such countermeasure’’); 42
U.S.C. § 247-6d (i) (8) (A) (2018) (defining ‘‘qualified person’’ to include ‘‘a
licensed health professional or other individual who is authorized to pre-
scribe, administer, or dispense such countermeasures under the law of the
State in which the countermeasure was prescribed, administered, or dis-
pensed’’).
29
The liability protections provided by the amended PREP Act declaration
are retroactive to March 10, 2020, the date that Governor Lamont declared
a public health emergency. See Eleventh Amendment to Declaration Under
the Public Readiness and Emergency Preparedness Act for Medical Counter-
measures Against COVID-19, supra, 88 Fed. Reg. 30,775.
30
The plaintiff did not specifically allege in her complaint that the defen-
dants were grossly negligent when they failed to admit the decedent immedi-
ately to the catheterization lab, even if they reasonably believed that her
symptoms were being caused by COVID-19, because she did not preemp-
tively anticipate the defendants’ immunity defense. We must read the com-
plaint broadly in her favor, however, and we cannot conclude at this stage
of the proceedings that she would be precluded from attempting to establish
at trial that the standard of care requires immediate admission to the cathe-
terization lab of any patient who presents with STEMI symptoms, even if
some other cause is suspected, in light of the severe consequences of a
delay in a definitive diagnosis.
31
Although not directly on point, the decision of the federal District Court
in Haro v. Kaiser Foundation Hospitals, Docket No. CV 20-6006-GW-JCx,
2020 WL 5291014 (C.D. Cal. September 3, 2020), is instructive. In Haro, the
plaintiff claimed that the defendant had required its hourly employees to
arrive at least fifteen minutes before the start of their work shift so that
they could undergo screening for COVID-19. Id., *1. The plaintiff sought
compensation for this time. Id. The defendant contended that it was immune
from suit and liability for this claim under the PREP Act. Id. The court
concluded that the plaintiff’s wage claim was ‘‘not causally connected to the
screening procedures themselves, but rather the requirement that employees
show up [fifteen] minutes before their shifts start. [The defendant] could
just as easily have implemented the screenings without the requirement that
employees show up early. In that case, the screening procedures would
simply have occurred while employees were on the clock and [the plaintiff]
would not have a [minimum wage] claim.’’ (Emphasis omitted.) Id., *3.
Similarly, in the present case, if the defendants had diagnosed the decedent
with a suspected STEMI and admitted her to the catheterization lab while
the COVID-19 test results were pending (as the plaintiff’s complaint, read
broadly in her favor, alleges they should have done), the pending COVID-19
test would have had no impact on the care that they provided to the decedent.
32
The specific issue addressed by the court in Goins was whether the
defendants who treated the plaintiff in that case after she received the
vaccine were ‘‘covered persons’’ for purposes of the PREP Act. See Goins
v. Saint Elizabeth Medical Center, supra, 2022 WL 17413570, *7–8. The court
concluded that they were not because the plaintiff made no allegation that
they prescribed, administered or dispensed the COVID-19 vaccine. See id.;
see also 42 U.S.C. § 247d-6d (i) (2) (B) (iv) (2018) (defining ‘‘covered person’’
to include ‘‘a qualified person who prescribed, administered, or dispensed
such countermeasure’’). As framed by the plaintiff in the present case, the
issue is not whether the defendants are covered persons, but whether the
complaint alleges that the death has a causal relationship with the adminis-
tration to or use by an individual of a covered countermeasure. Accordingly,
we do not address the question of whether any or all of the defendants
were covered persons under the PREP Act. The Goins analysis nonetheless
supports the plaintiff’s position here because of the overlapping analyses
of these issues under the language of the statute.
33
The defendants also cite a number of cases that do not involve the
PREP Act for the proposition that the phrase ‘‘arising out of,’’ as used in
the PREP Act; 42 U.S.C. § 247d-6d (a) (1) (2018); should be interpreted
broadly. See Ford Motor Co. v. Montana Eighth Judicial District Court,
U.S. , 141 S. Ct. 1017, 1026, 209 L. Ed. 2d 225 (2021) (construing
phrase ‘‘arise out of or relate to the defendant’s contacts with the forum,’’
as used in court’s personal jurisdiction jurisprudence (emphasis omitted;
internal quotation marks omitted)); United States v. Shearer, 473 U.S. 52,
54–55, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985) (construing phrase ‘‘[a]ny claim
arising out of assault [or] battery,’’ as used in portion of Federal Tort Claims
Act, as excepting such claims from waiver of sovereign immunity (internal
quotation marks omitted)); Nationwide Mutual Ins. Co. v. Pasiak, 327 Conn.
225, 242–54, 173 A.3d 888 (2017) (construing phrase ‘‘arising out of,’’ as used
in insurance policies). These cases provide minimal guidance because they
do not involve the PREP Act. In our view the plaintiff’s claims do not ‘‘arise
out of’’ the administration of the COVID-19 test to the decedent, regardless
of the breadth of that term.
34
To illustrate this point, assume hypothetically that the COVID-19 test
had been administered at Backus, before the defendants’ involvement, but
the result thereafter was relayed to the defendants. In this scenario, the
defendants would not be immune under the PREP Act because their alleged
negligence—their misdiagnosis of a COVID-19 related condition—has no
causal relationship to the COVID-19 test performed earlier by some other
caregiver. By contrast, the defendants would be immune under Executive
Order No. 7V, until the test result came back, because the alleged malpractice
occurred in connection with diagnostic services provided by the defendants
in support of the state’s response to COVID-19.