AUBURN – Members of the Alabama Supreme Court heard oral arguments on Thursday at Auburn University in a wrongful death case at Jackson Hospital in Montgomery in 2020.

Attorneys for the plaintiff in the case, Theresa Johnson, argued some of Gov. Kay Ivey’s proclamations during the pandemic were unconstitutional and exceeded her emergency authority to protect the health and safety of Alabamians.

“She exceeded her power in that order by entering an order that didn’t address health or safety. This order was one that was aimed at economic stimulus, period. It wasn’t aimed at decreasing in-person, face-to-face contact. It was frankly openly concerned with increasing it, with getting people back to the workplace and making businesses money and allowing businesses to make money. Look, we love a healthy economy. We want a healthy economy, but that’s the province of the legislature. It’s not something the executive can do unilaterally just because there’s an emergency,” William Lattimore, an attorney for Johnson, said during oral arguments on Thursday.

Thomas Richie, an attorney for Jackson Hospital & Clinic Inc., said Ivey’s emergency proclamations and the Alabama COVID-19 Immunity Act “demonstrate the proper functioning of government in an emergency.”

“Jackson Hospital is immune from the non-wantonness claims of the plaintiff under both the Governor’s Emergency proclamations that were issued under the Emergency Management Act and is independently immune from those claims under the Alabama COVID-19 Immunity Act passed by the legislature in February 2021,” Richie said at oral arguments.

The Supreme Court ruling in January provides an affirmative defense to a hospital being sued for negligence by a patient who fell and was injured while exiting the premises following monoclonal-antibody-infusion therapy to treat her for COVID-19.

According to a summary of the case by the Alabama Supreme Court heard on Thursday: 

On November 26, 2020, Nathaniel Johnson was admitted to Jackson Hospital in Montgomery with COVID-19. On December 6, 2020, the hospital decided to transfer Johnson to another floor. Johnson had been receiving oxygen through a BiPap machine, but because the BiPap machine lacked filters necessary to filter Johnson's exhaled air, the hospital did not believe it would be safe for the other patients to transfer him between floors while he was on the BiPap machine. Therefore, the hospital decided to take Johnson off the BiPap machine. What happened next is disputed. On the one hand, Jackson Hospital claims that Johnson's respiratory therapists immediately replaced the BiPap machine with an OxyMask, which continued to provide Johnson with oxygen. On the other hand, Johnson's wife Theresa, who at the time was a patient-care technician at Jackson Hospital, claims that she was in the room with him when they took him off the BiPap machine and that they never gave him an OxyMask or another source of oxygen. After the respiratory therapists left the room with his equipment, Johnson went into distress. 

Medical personnel tried to save him but were unsuccessful. On September 10, 2021, Theresa sued Jackson Hospital in the Montgomery Circuit Court, on her own behalf and as the representative of her husband's estate, claiming medical malpractice, negligent/wanton training and supervision, loss of consortium, and wrongful death. Jackson Hospital moved for a summary judgment, arguing that it was immune from suit under Governor Ivey's emergency proclamations and under the Alabama Covid Immunity Act ("the ACIA"), which was enacted on February 12, 2021. Theresa responded that Governor Ivey's proclamations and the ACIA were unconstitutional and that, in the alternative, she had produced sufficient evidence of wantonness to invoke the ACIA's exceptions. The circuit court denied Jackson Hospital's motion, reasoning that Theresa had invoked one of the ACIA's exceptions. Jackson Hospital now petitions this Court for a writ of mandamus, requesting that this Court direct the circuit court to enter a summary judgment for the hospital on the ground of immunity under the ACIA.

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