Manginelli v. Regency House of Wallingford, Inc. ( 2023 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
KIMBERLY MANGINELLI, CONSERVATOR (ESTATE
OF DARLENE MATEJEK), ET AL. v. REGENCY
HOUSE OF WALLINGFORD, INC., ET AL.
(SC 20767)
(SC 20768)
McDonald, D’Auria, Mullins, Ecker and Seeley, Js.
Syllabus
Pursuant to Executive Order No. 7V, § 6, which was issued by the governor
on April 7, 2020, amid the COVID-19 pandemic, ‘‘any health care profes-
sional 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 under-
taken 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 . . . .’’
The plaintiff, individually and as administratrix of the estate of M, sought
to recover damages from the defendants R Co. and N Co., which operate
a nursing home, for the allegedly wrongful death of M. M was being
cared for at the nursing home, where she required assistance for bed and
wheelchair transfers. During a bed transfer on April 26, 2020, M fell.
The nursing home staff placed M back in her bed but failed to immedi-
ately report her fall to her family and did not obtain medical treatment
for M for two days. M eventually was treated and diagnosed with injuries
that left her permanently disabled and that, according to the plaintiff,
ultimately led to her demise. The plaintiff alleged that the defendants
were negligent and reckless in their care and treatment of M in that
they, among other things, failed to implement a plan of care for M prior
to her fall, to report the fall when it occurred, to obtain immediate
treatment, and to treat M’s pain. The defendants filed a motion to dismiss
the plaintiff’s complaint, claiming that they were immune from suit and
liability under Executive Order No. 7V, § 6. In opposing the motion, the
plaintiff argued that M’s injuries did not have any connection to a COVID-
19 diagnosis or treatment. The trial court denied the defendants’ motion
to dismiss, concluding that the immunity conferred by the executive
order applied only in cases involving the treatment of COVID-19 patients.
The defendants appealed from the trial court’s motion to dismiss, and,
upon certification by the Chief Justice pursuant to statute (§ 52-265a)
that a matter of substantial public interest was involved, the defendants
filed a separate appeal with this court, claiming that the trial court
incorrectly had determined that they were not immune from suit and
liability under Executive Order No. 7V for their alleged acts and omis-
sions and that the court, therefore, improperly denied their motion
to dismiss.
Held that the trial court properly denied the defendants’ motion to dismiss,
as the defendants failed to establish the requisite connection between
the alleged acts and omissions for which they sought immunity under
Executive Order No. 7V and an alleged lack of resources attributable
to the COVID-19 pandemic:
In the companion case of Mills v. Hartford HealthCare Corp. (347 Conn.
524), this court determined that the purpose of the immunity provision
of Executive Order No. 7V, § 6, was to keep health care facilities open
and operating during the pandemic in the face of overwhelming demand
for medical care due to the emergence of COVID-19 by augmenting the
state’s health care workforce through the recruitment of health care
professionals who had not previously maintained liability coverage, by
facilitating the deployment of volunteers and out-of-state professionals,
and by calling on health care professionals to perform services that
they otherwise would not ordinarily perform in the ordinary course of
business, and, to encourage maximum participation, there was a compel-
ling state interest in affording such medical professionals and facilities
protection against liability for good faith actions in furtherance of the
state’s response to the COVID-19 pandemic.
In light of this underlying purpose, the court in Mills also determined
that immunity applies under Executive Order No. 7V when the acts or
omissions alleged to have caused the compensable injury were connected
to the health care provider’s services performed in support of the state’s
COVID-19 response, even if the provider was not specifically treating
the patient for COVID-19, and, accordingly, the trial court’s determination
in the present case that the immunity afforded under Executive Order
No. 7V applies only when the acts or omissions at issue involved the
diagnosis or treatment of a COVID-19 patient was based on an overly
narrow interpretation of that executive order.
This court determined that the plain and unambiguous language of the
lack of resources clause in Executive Order No. 7V manifested an intent
that, for immunity to apply, the health care provider must establish that
there was a lack of resources attributable to the COVID-19 pandemic
and that this lack of resources caused the acts and/or omissions for
which the provider is seeking immunity.
In the present case, although the defendants offered evidence of a lack
of specific resources that was caused by the COVID-19 pandemic, there
was no evidence as to how the lack of resources specifically related to
the defendants’ alleged actions and omissions, for example, how the
lack of resources led to the defendants’ failure to implement a plan of
care for M prior to her fall and to obtain treatment for M immediately
after her fall.
Accordingly, an open factual dispute regarding the connection between
the lack of resources and the alleged acts and omissions remained, and,
therefore, the resolution of this critical factual dispute could not be
decided on a motion to dismiss.
Argued April 27—officially released August 8, 2023*
Procedural History
Action to recover damages for, inter alia, the wrongful
death of the named plaintiff’s decedent as a result of
the defendants’ alleged medical malpractice, and for
other relief, brought to the Superior Court in the judicial
district of New Haven, where the court, Abrams, J.,
denied the defendants’ motion to dismiss, and the defen-
dants appealed to the Appellate Court; thereafter, upon
certification by the Chief Justice pursuant to General
Statutes § 52-265a that a matter of substantial public
interest was involved, the defendants appealed to this
court; subsequently, the appeal to the Appellate Court
was transferred to this court, and the appeals were
consolidated. Affirmed.
Michael S. Taylor, with whom were Brendon P. Lev-
esque and, on the brief, Cristin E. Sheehan, Christina
Canales and Gina Hall, for the appellants (defendants).
Robert C. Lubus, Jr., with whom was Andrew S.
Marcucci, for the appellees (plaintiffs).
Joshua Perry, solicitor general, with whom, on the
brief, were William Tong, attorney general, and Michael
K. Skold, deputy solicitor general, for the state of Con-
necticut as amicus curiae.
Ryan K. Sullivan and Julianne Lombardo Klaassen
filed briefs for the Connecticut Trial Lawyers Associa-
tion 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.
Angeline Ioannou and Timothy M. Gondek filed a
brief for the Connecticut Defense Lawyers Association
as amicus curiae.
Opinion
D’AURIA, J. For approximately three and one-half
years, the world has battled against the COVID-19 pan-
demic. As we explained in Casey v. Lamont, 338 Conn.
479, 258 A.3d 647 (2021), at the height of the pandemic,
due to the highly contagious nature of COVID-19, ‘‘[a]round
the country—indeed [around] the world—large seg-
ments of economic activity [had] been severely dis-
rupted, if not fallen into collapse, millions of people
[had] lost their employment, many hospitals and other
health-care operations [had] been overrun by gravely
ill and dying patients, and extraordinary lockdowns
ordered by government officials, in an effort to abate
the rate of infection . . . limited the free flow of per-
sonal and commercial activity.’’ Id., 482. Addressing
these issues, on March 10, 2020, Governor Ned Lamont
issued a declaration of public health and civil prepared-
ness emergencies, proclaiming a state of emergency
throughout the state of Connecticut as a result of
COVID-19. Then, on April 5, 2020, Governor Lamont
issued Executive Order No. 7U, which he subsequently
amended on April 7, 2020, by issuing Executive Order
No. 7V, § 6, which provides, among other things, immu-
nity from suit and liability to health care providers under
certain circumstances relating to COVID-19.
In a companion case also decided today, we interpre-
ted the scope of immunity afforded by Executive Order
No. 7V as it related to acts or omissions undertaken in
good faith by health care professionals and health care
facilities while providing health care services in support
of the state’s COVID-19 effort. See Mills v. Hartford
HealthCare Corp., 347 Conn. 524, A.3d (2023).
In the present public interest appeal certified under
General Statutes § 52-265a, we must determine the
scope of this immunity as it particularly relates to acts
or omissions undertaken because of an alleged lack of
resources attributable to the COVID-19 pandemic. On
appeal to this court, the defendants, Regency House of
Wallingford, Inc., and National Health Care Associates,
Inc., claim that the trial court improperly denied their
motion to dismiss the wrongful death claims filed by
the plaintiff, Kimberly Manginelli, both in her individual
capacity and as administratrix of the estate of Darlene
Matejek.1 Specifically, the defendants argue that the
trial court incorrectly determined that they had failed
to establish that the immunity provided by Executive
Order No. 7V applied to the alleged acts and omissions
at issue. According to the defendants, the trial court’s
error was premised on its overly narrow interpretation
of the order as applying only when the alleged acts and/
or omissions involved the diagnosis or treatment of
COVID-19 patients. We agree with the defendants that
the trial court too narrowly construed the language of
the order but nevertheless hold that the defendants
failed to establish that the immunity afforded by that
order applied in this case. Accordingly, on this record,
we uphold the trial court’s denial of their motion to
dismiss.
The following facts, as alleged in the complaint or
as established by uncontested evidence submitted in
conjunction with the motion to dismiss, are relevant to
this appeal. Regency House of Wallingford, Inc., oper-
ates a nursing home named Regency House of Wall-
ingford Nursing and Rehabilitation Center (Regency
House) with National Health Care Associates, Inc., pro-
viding guidance to Regency House regarding adminis-
trative functions. Beginning in 2014, Matejek lived at
Regency House. The defendants’ care plan for Matejek
specified that she required assistance for bed and
wheelchair transfers. On or about April 26, 2020,
Matejek fell during a bed transfer. The defendants’ staff
at Regency House placed Matejek back into her bed,
did not immediately report the fall to her family, and
failed to treat her pain. The defendants’ staff at Regency
House also did not obtain medical treatment for Matejek
for two days. Eventually, she was transported to a hospi-
tal, where physicians diagnosed Matejek with left and
right femur fractures, which permanently disabled both
of Matejek’s legs. After receiving treatment for her frac-
tured left and right femurs at the hospital, Matejek was
returned to Regency House to undergo additional medi-
cal treatment and rehabilitative care, although the
defendants’ staff at Regency House failed to adequately
provide the prescribed physical therapy. Her fall and
the delay in treatment that followed also led Matejek
to suffer a heart arrythmia, atrial fibrillation, severe
anxiety and stress, and pain and suffering. The plaintiff
alleges that, as a result of these injuries, Matejek died
on December 29, 2020.
The plaintiff, both on behalf of Matejek as administra-
trix of her estate and in her individual capacity, in which
she seeks damages for loss of consortium, filed a com-
plaint against the defendants for Matejek’s treatment
at Regency House and death, alleging twelve counts of
wrongful death under General Statutes § 52-555, based
on medical negligence and medical recklessness. Spe-
cifically, the plaintiff alleged that the defendants were
negligent and/or reckless in that they failed to obtain
immediate medical treatment for Matejek’s injuries,
which required surgical intervention; failed initially to
report the fall; failed to treat Matejek’s pain; failed to
obtain necessary medical treatment for two days; failed
to implement the plan of care for Matejek prior to the
fall; and failed to provide the physician-ordered physical
therapy after Matejek returned to Regency House from
the hospital.
The defendants moved to dismiss the complaint, claim-
ing immunity from suit pursuant to Executive Order
No. 7V on the ground that the order applied 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 . . . .’’ In support of their motion to dismiss, the
defendants submitted an affidavit from Donna Dwyer,
the Director of Nursing at Regency House from May,
2017, to January, 2021, detailing the administrative chal-
lenges caused by the sudden appearance of the new
virus. These obstacles included, but were not limited
to, adapting to frequent changes in COVID-19 guidance,
staff shortages due to virus exposure, shortages of per-
sonal protective equipment, increased phone call vol-
ume, the weakened condition of Regency House residents,
and increased requests for nurse evaluations. Dwyer
averred that, during the week of Matejek’s fall, Regency
House ‘‘was at the height of its first COVID-19 out-
break.’’ Although Dwyer did not provide any details
as to the actual treatment provided to Matejek, the
defendants argued that they treated her while support-
ing the state’s COVID-19 response, thus rendering them
immune from liability under Executive Order No. 7V.
The defendants reasoned that the governor intended
the order to be far-reaching to ensure that health care
workers did not fear legal repercussions when making
good faith efforts to treat COVID-19 patients.
The plaintiff objected to the motion to dismiss, asserting
that Matejek’s injuries did not involve any connection to
COVID-19 treatment, placing the defendants’ activities
outside of the protections of Executive Order No. 7V.
The plaintiff acknowledged that Dwyer’s affidavit
broadly and accurately explained the defendants’
COVID-19 protocols and the effects of the pandemic
on Regency House but argued that the defendants had
failed to provide the trial court with any evidence
regarding how COVID-19 specifically impacted the care
that Matejek received.2 Further, the plaintiff reasoned
that the defendants’ proposed interpretation of Execu-
tive Order No. 7V would unreasonably shield health
care actors from liability, regardless of whether the
medical treatment in question was connected to the
pandemic.
The trial court denied the motion to dismiss, citing
the decision in Mills v. Hartford HealthCare Corp.,
judicial district of Hartford, Docket No. CV-XX-XXXXXXX-
S (September 27, 2021) (Budzik, J.), as particularly
persuasive for narrowly applying the scope of Executive
Order No. 7V only to ‘‘instances involving the treatment
of COVID-19 patients.’’ The defendants then sought cer-
tification to appeal3 pursuant to General Statutes § 52-
265a and Practice Book § 83-1, which the Chief Jus-
tice granted.
On appeal, the defendants claim that the trial court
incorrectly determined that they were not immune from
suit and liability under Executive Order No. 7V for their
alleged acts and omissions and, therefore, improperly
denied their motion to dismiss. The defendants argue
that the trial court’s narrow interpretation of Executive
Order No. 7V as applying only to the diagnosis and
treatment of COVID-19 patients conflicts with the
explicit language and purpose of Executive Order No.
7V. More specifically, the defendants argue that the trial
court’s interpretation renders superfluous the ‘‘lack of
resources’’ language in the executive order and adds a
requirement—that the tort claimant have COVID-19—
not found in the order. Instead, the defendants rely
on the governor’s various statements of intent,4 which,
according to the defendants, show that the purpose
of Executive Order No. 7V was not to encourage the
treatment of COVID-19 patients per se but to increase
the state’s available health resources to provide health
care for all patients, regardless of whether they are
being treated for COVID-19.
In response, and without any supporting citation,5
the plaintiff contends that the purpose of Executive
Order No. 7V was to encourage the mass participation of
medical providers in Connecticut’s health care facilities
because the biggest obstacle to such participation in
March, 2020, was the highly unknown nature of COVID-
19, how it was transmitted, and how to diagnose and
treat it. According to the plaintiff, this led health care
providers to be concerned about facing litigation for
the misdiagnosis or mistreatment of such an unknown
disease. As a result, the plaintiff asserts, Executive
Order No. 7V sought to solve this problem by granting
immunity for the good faith diagnosis or treatment of
COVID-19. The plaintiff asserts that the defendants
offered no evidence to establish that the alleged acts
or omissions had any direct relation to the diagnosis
or treatment of COVID-19. Alternatively, the plaintiff
argues, even if the order could be construed not to
require a diagnosis and/or treatment directly related to
COVID-19, when, as in the present case, the alleged
acts or omissions are due to a ‘‘lack of resources’’ attrib-
utable to the pandemic, the defendants must demon-
strate a nexus between the alleged acts or omissions
and the ‘‘lack of resources,’’ which, the plaintiff alleges,
the defendants in the present case did not establish.
‘‘A motion to dismiss . . . properly attacks the juris-
diction of the court, essentially asserting that the plain-
tiff cannot as a matter of law and fact state a cause of
action that should be heard by the court. . . . A motion
to dismiss tests, inter alia, whether, on the face of the
record, the court is without jurisdiction. . . . [O]ur
review of the court’s ultimate legal conclusion and
resulting [determination] of the motion to dismiss will
be de novo.’’ (Internal quotation marks omitted.) Con-
boy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009).
When deciding a motion to dismiss for lack of subject
matter jurisdiction pursuant to Practice Book § 10-30
(a) (1), if, as here, ‘‘the complaint is supplemented by
undisputed facts established by affidavits submitted in
support of the motion to dismiss . . . the trial court
. . . may consider these supplementary undisputed
facts and need not conclusively presume the validity
of the allegations of the complaint. . . . [But] if the
allegations of the complaint and the supplementary
facts produced by the defendant do not conclusively
establish that jurisdiction 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.’’ (Citations
omitted; internal quotation marks omitted.) Mills v.
Hartford HealthCare Corp., supra, 347 Conn. 542–43.
In the present case, resolution of the defendants’ claim
requires us to construe the scope of the immunity Execu-
tive Order No. 7V conferred. In Mills, this court addressed
the principles that govern the interpretation of execu-
tive orders: ‘‘[A]pplying the principles of statutory inter-
pretation to [an] executive order is [appropriate]
because [such an] order has the full force and effect
of law . . . and, therefore, [we] apply the usual princi-
ples of statutory interpretation to our construction of
Executive Order No. 7V.’’6 (Citations omitted; footnote
omitted; internal quotation marks omitted.) Id., 543–44.
Executive Order No. 7V, § 6, provides in relevant part:
‘‘Notwithstanding any provision of the Connecticut
General Statutes or any other state law, including the
common law, or any associated regulations, rules, poli-
cies, 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 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, provided that nothing in this order
shall remove or limit any immunity conferred by any
provision of the Connecticut General Statutes or other
law.’’ (Emphasis added.) At issue in the present case
is the meaning of the ‘‘lack of resources’’ clause.
In interpreting the language at issue, we begin with
this court’s decision in Mills, which interpreted a differ-
ent phrase of Executive Order No. 7V. Specifically, in
Mills, the parties disputed the meaning of the phrase
in Executive Order No. 7V, ‘‘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 . . . .’’ The plaintiff in
Mills had argued in the trial court that the immunity
afforded by Executive Order No. 7V applies to acts or
omissions undertaken only while the defendants were
actually providing health care services in support of the
state’s COVID-19 response and thus that the defendants
were not immune from suit for acts or omissions they
undertook while they were solely providing other health
care services, i.e., those that were not in support of the
state’s COVID-19 response. Mills v. Hartford Health-
Care Corp., supra, 347 Conn. 539–40. The trial court
agreed with the plaintiff and denied the defendants’
motions to dismiss as to any claim not premised on the
diagnosis or treatment of COVID-19. Id., 541.
On appeal, this court determined that the language
of the immunity provision of Executive Order No. 7V
was ‘‘reasonably susceptible to a range of reasonable
interpretations. The narrowest interpretation would
understand the phrase ‘while providing health care ser-
vices 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),
regardless of whether the acts or omissions are con-
nected 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 provider was not treating the injured party
for COVID-19.’’ Id., 546.
In light of this ambiguity, this court in Mills consid-
ered as interpretive guidance the circumstances sur-
rounding the executive order’s promulgation and the
public policy that it was designed to implement.7 See id.Relying on these circumstances and public policy con-
cerns, the court concluded that ‘‘[t]he evident purpose
of the immunity provision of Executive 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 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 such acts and omissions, as long as they acted
in good faith and in support of the state’s COVID-19
response.’’ (Footnote omitted.) Id., 550.
In light of this underlying purpose, we rejected the
plaintiff’s interpretation of the executive order because
it would fall far short of fulfilling the public policy
underlying the order—namely, ‘‘to allow health care
facilities to provide [health care services in support of
the state’s COVID-19 response] without the fear of being
subjected to lawsuits.’’ Id., 551. We also rejected the
defendants’ argument that the immunity provision of
Executive Order No. 7V provides immunity for all
actions and omissions undertaken by health care pro-
fessionals and facilities during the period they were
providing services in support of the state’s COVID-19
response because such an interpretation would provide
unintended relief to health care providers and facilities
by exceeding the purpose of the executive order to
provide immunity for acts or omissions that have no
connection to COVID-19. Id. Rather, this court deter-
mined that the order’s language meant that ‘‘immunity
applies when the acts or omissions [alleged to have
caused] 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 provider was not
treating the injured party for COVID-19.’’ Id., 546.
We also explained in Mills that other provisions of
the order supported this interpretation because the lan-
guage of the ‘‘lack of resources’’ clause ‘‘plainly requires
the act or omission to have a connection to the COVID-
19 pandemic for immunity to apply.’’ Id., 554. This court
reasoned that, ‘‘[i]f 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 services, and
is not required to establish that the act or omission was
connected to the provision of those services, then the
specific circumstances that fall within the ‘including
but not limited to [lack of resources]’ clause would be
rendered entirely superfluous. . . . 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.’’ (Citation omitted.) Id.Thus, we concluded in Mills that the plain language
of the ‘‘including but not limited to [lack of resources]’’
clause of Executive Order No. 7V’s immunity provision
requires the acts and/or omissions at issue to have a
connection to the COVID-19 pandemic for immunity to
apply. But our decision in Mills did not require us to
determine precisely the degree of connection between
the acts and/or omissions at issue and the COVID-19
pandemic. The plain and unambiguous language of the
‘‘lack of resources’’ clause, however, manifests an intent
that, for immunity to apply, the defendants must estab-
lish that (1) there was a lack of resources, absent an
assertion of another relevant circumstance, attributable
to the COVID-19 pandemic, and (2) this lack of resources
caused the acts and/or omissions at issue. Specifically,
the phrase ‘‘attributable to the COVID-19 pandemic’’
directly modifies the phrase, ‘‘a lack of resources,’’ as
is evident by the placement of the commas and by the
fact that this phrase cannot reasonably modify any other
portion of the executive order. See Indian Spring Land
Co. v. Inland Wetlands & Watercourses Agency, 322
Conn. 1, 16, 145 A.3d 851 (2016) (court may discern
‘‘plain meaning of statute on basis of ‘grammatical struc-
ture of the statute’ ’’). As a result, this language clearly
requires the defendants to show that the COVID-19 pan-
demic caused a specific lack of resources. Additionally,
the phrase, ‘‘because of a lack of resources,’’ directly
modifies the phrase, ‘‘acts or omissions undertaken’’ in
Executive Order No. 7V; see Connecticut Ins. Guaranty
Assn. v. Drown, 314 Conn. 161, 189, 101 A.3d 200 (2014)
(‘‘[i]t is well recognized that, whenever possible, a mod-
ifier should be placed next to the word it modifies’’
(internal quotation marks omitted)); with the phrase,
‘‘because of,’’ denoting a causal relationship. See Con-
necticut Ins. Guaranty Assn. v. Fontaine, 278 Conn.
779, 787, 900 A.2d 18 (2006) (defining ‘‘because of’’ as
‘‘[o]n account of; by reason of’’ or ‘‘[f]or the reason that;
since’’ (internal quotation marks omitted)); Webster’s
Third New International Dictionary (2002) p. 194 (defin-
ing ‘‘because’’ as ‘‘since . . . for the reason that . . .
on account of the cause that—used to introduce depen-
dent clauses’’); see also University of Texas Southwest-
ern Medical Center v. Nassar, 570 U.S. 338, 350, 133 S.
Ct. 2517, 186 L. Ed. 2d 503 (2013) (defining ‘‘because
of’’ as requiring but for cause); Koch Foods, Inc. v.
Secretary, United States Dept. of Labor, 712 F.3d 476,
481 (11th Cir. 2013) (‘‘[t]he word ‘because’ suggests a
causal connection’’). As a result, this language clearly
requires the defendants to show that a specific lack of
resources attributable to COVID-19 caused the acts and/
or omissions at issue.
This level of specificity is in line with our interpreta-
tion of the executive order’s ‘‘while providing health
care services’’ clause in Mills. The public policy ratio-
nale for limiting immunity to acts or omissions con-
nected to the health care provider’s services in support
of the state’s COVID-19 response equally applies here
based on the phrase, ‘‘including but not limited to,’’
showing that the ‘‘lack of resources’’ clause is an exam-
ple of a circumstance that would qualify for immunity
under the ‘‘while providing health care services in sup-
port of the [s]tate’s COVID-19 response’’ clause, and
thus must be consistent. See Anderson v. Pension &
Retirement Board, 167 Conn. 352, 355, 355 A.2d 283(1974) (‘‘the phrase ‘including but not limited to’ . . .
contains words of illustration, not limitation’’). Failing
to require a connection between the specific lack of
resources at issue and the acts and/or omissions alleged
would provide relief to health care providers and facili-
ties unrelated to the purpose of the order. See Mills
v. Hartford HealthCare Corp., supra, 347 Conn. 551.
However, requiring that the acts or omissions relate to
the diagnosis or treatment of COVID-19 would under-
mine the governor’s stated intent to provide protection
to health care workers and facilities.8 See id., 550.
Rather, as with the ‘‘providing health care services’’
clause, to be entitled to immunity, a defendant must
establish a direct connection between the alleged acts
and/or omissions and the lack of resources at issue.
See 777 Residential, LLC v. Metropolitan District
Commission, 336 Conn. 819, 828, 251 A.3d 56 (2020)
(‘‘[w]e construe a statute as a whole and read its subsec-
tions concurrently in order to reach a reasonable overall
interpretation’’ (internal quotation marks omitted)).
This interpretation of the ‘‘lack of resources’’ clause
is consistent with the language of the immunity provi-
sion as a whole. Specifically, the clause at issue goes
on to clarify that the alleged acts and/or omissions are
caused by the lack of resources when the lack of
resources ‘‘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 . . . .’’ Executive
Order No. 7V, § 6 (April 7, 2020). This language elimi-
nates any possibility that the governor intended the
immunity afforded by Executive Order No. 7V to apply
only to the diagnosis and treatment of COVID-19
patients because, before the COVID-19 pandemic, there
was no established level of care for COVID-19 patients,
as there were no COVID-19 patients. This language then
must refer to the standard of care that would have been
applied to patients requiring non-COVID-19 health care
prior to the pandemic, as compared to patients who,
during the pandemic, also required non-COVID-19
health care.
Applying this interpretation of Executive Order No.
7V to the present case, we conclude that the trial court
properly denied the defendants’ motion to dismiss. Spe-
cifically, the defendants failed to establish that a partic-
ular lack of resources due to the COVID-19 pandemic
caused the alleged acts and/or omissions. It is true that
the defendants provided an affidavit by Dwyer to estab-
lish that the COVID-19 pandemic created vast difficul-
ties for the defendants—staff shortages due to virus
exposure, shortages of personal protective equipment,
increased phone call volume, weakened condition of
Regency House residents, and increased requests for
nurse evaluations. Thus, the defendants offered evidence
of a lack of specific resources and that the COVID-19
pandemic caused this lack of resources. But there is
no evidence in the record about how the lack of these
specific resources specifically related to the defendants’
alleged actions and/or omissions that caused Matejek’s
injuries. For example, the defendants provided no evi-
dence regarding how the lack of these resources led to
the defendants’ failing to implement Matejek’s health
program, leading to her fall. They also supplied no evi-
dence regarding how the lack of these resources related
to the defendants’ failure to provide Matejek treatment
for two days.9 Finally, the defendants advanced no evi-
dence regarding how the lack of these resources con-
nects to the defendants’ alleged failure to provide
Matejek with proper treatment after she left the hospital
and returned to Regency House.
The defendants could have requested, but failed to
request, an evidentiary hearing to prove these jurisdic-
tional facts—namely, the connection between the spe-
cific lack of resources and the alleged acts and omissions
regarding the defendants’ care of Matejek. ‘‘[W]here a
jurisdictional determination is dependent on the resolu-
tion of a critical factual dispute, it cannot be decided
on a motion to dismiss in the absence of an evidentiary
hearing to establish jurisdictional facts. . . . An evi-
dentiary hearing is necessary because a court cannot
make a critical factual [jurisdictional] finding based on
memoranda and documents submitted by the parties.’’
(Citations omitted; footnotes omitted; internal quota-
tion marks omitted.) Conboy v. State, supra, 292 Conn.
652–54. Thus, when an open factual dispute remains
on the record before the trial court, the court properly
denies a motion to dismiss. See id., 654 (‘‘we conclude
that the trial court properly denied the state’s motion
to dismiss because, on the record before the court, an
open factual dispute remained as to the motivations
underlying the termination of the plaintiffs’ employment’’).
Based on the record before the trial court in the
present case, facts necessary to establish the immunity
defense remained unproven: the connection between
the alleged acts and omissions and the alleged lack of
resources. Therefore, we conclude that, although the
trial court incorrectly narrowed the scope of Executive
Order No. 7V, it correctly denied the defendants’ motion
to dismiss.
The trial court’s denial of the defendants’ motion to
dismiss is affirmed.
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
We note that the case captions in the trial court, the Appellate Court
and this court list Manginelli as the conservator of the decedent’s estate.
Subsequent to the decedent’s death on December 29, 2020, the Probate
Court on March 16, 2021, appointed Manginelli the administratrix of the
decedent’s estate. For simplicity, we refer in this opinion to Manginelli, in
both her individual capacity and as administratrix of the decedent’s estate,
as the plaintiff.
2
At no point did the defendants or the plaintiff move for a pretrial eviden-
tiary hearing. See Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009).
3
The defendants also initially claimed that the opinion letter attached to
the plaintiff’s complaint, as required by General Statutes § 52-190a, did not
provide sufficient information to determine the relevant qualifications of
their health care provider, thus warranting dismissal of the complaint. The
trial court ruled that this claim was moot after the plaintiff submitted an
amended opinion letter.
4
At the beginning of Executive Order No. 7V, the governor detailed the
purpose of the order: ‘‘WHEREAS, on March 10, 2020, I issued a declaration
of public health and civil preparedness emergencies, proclaiming a state of
emergency throughout the [s]tate of Connecticut as a result of the coronavi-
rus disease 2019 (COVID-19) outbreak in the United States and confirmed
spread in Connecticut; and . . . WHEREAS, COVID-19 is a respiratory dis-
ease that spreads easily from person to person and may result in serious
illness or death; and . . . WHEREAS, the critical need to limit the spread
of COVID-19 requires the enforcement of distancing and other protective
measures in all workplaces; and . . . WHEREAS, there exists a compelling
state interest in rapidly expanding the capacity of health care professionals
and facilities to provide care during the COVID-19 pandemic; and WHEREAS,
providing relief from liability for such health care professionals for good
faith efforts to provide care during the COVID-19 pandemic will greatly
increase the state’s ability to achieve such an expansion . . . .’’
5
We presume that the plaintiff is relying on the following statement of
intent by the governor in Executive Order No. 7V, which the defendants
do not rely on: ‘‘WHEREAS, numerous medical professionals, after having
completed the educational requirements for their profession, are permitted
to temporarily practice their profession under the supervision of a licensed
practitioner prior to being licensed; and WHEREAS, such professionals’
ability to temporarily practice their profession may expire prior to the end
of the public health and civil preparedness emergency; and WHEREAS,
necessary public health protective measures enacted in response to the
COVID-19 pandemic may prevent such professionals from completing their
licensing requirements during the public health and civil preparedness emer-
gency; and WHEREAS, to maintain and expand the healthcare workforce
capacity for COVID-19 response and mitigation efforts, it is necessary to
allow such professionals to continue to work in such temporary, supervised
status for the duration of the declared civil preparedness and public health
emergency . . . .’’
6
We note, however, as we did in Mills, that ‘‘[t]he Appellate Court . . .
[previously] determined that the plain meaning rule set forth in General
Statutes § 1-2z applied to its interpretation of an executive order. . . . 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 . . . .’’ (Citation
omitted.) Mills v. Hartford HealthCare Corp., supra, 347 Conn. 543 n.12.
7
‘‘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 dangerous 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. . . . It was widely believed in March, 2020, that medical provid-
ers and hospitals throughout the United States were about to be overwhelmed
with COVID-19 patients. . . . Confronted with these circumstances,
on March 10, 2020, Governor Lamont declared a public health emergency
and a civil preparedness emergency throughout the state pursuant to General
Statutes §§ 19a-131a and 28-9. . . . 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 main-
tained 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 . . . .
Governor Lamont further determined that . . . to encourage maximum par-
ticipation in efforts to expeditiously expand Connecticut’s health care work-
force and facilities capacity, there exists a compelling 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 . . . .’’ (Citations omitted; footnotes omitted; internal quotation
marks omitted.) Mills v. Hartford HealthCare Corp., supra, 347 Conn.
546–50.
8
The plaintiff argues that the plain language of the order as a whole
supports her interpretation. Specifically, according to the plaintiff, the lan-
guage, ‘‘while providing health care services in support of the [s]tate’s
COVID-19 response,’’ mandates a direct relationship between the treatment
in question and COVID-19 before immunity can attach and that this limitation
likewise applies to the ‘‘lack of resources’’ clause. We already have rejected
this argument in Mills, however, as previously discussed.
9
The result of this case may well have been different, for example, if, in
her affidavit, Dwyer had averred that, when the decedent was hurt, the
defendants’ employees called all the local hospitals to discover if any had
a free bed but were told that there were no open beds due to high volume
of COVID cases, and that, because of this, the defendants’ employees could
not take the decedent to the hospital any sooner than they had done so.