Arkansas Supreme Court Rejects Hospital’s Appeal in COVID-Related Negligence Action
- March 03, 2023
The Arkansas Supreme Court held February 23 that Baptist Health could not appeal a lower court’s refusal to dismiss a former patient’s medical malpractice complaint alleging the hospital provided negligent care and treatment for COVID-19.
The high court found the denial of the motion to dismiss was not a final appealable order because Baptist Health could only assert immunity from liability, not from suit.
Baptist cited an executive order from the state's governor granting health care providers immunity from liability “for any death, injury, or property damage” sustained during the public health emergency in connection with diagnosing or treating patients for COVID-19, except in instances of “willful, reckless, or intentional misconduct.”
Plaintiff Khampasith Sourinphoumy, who received treatment at Baptist for COVID-19 from January 2, though March 25, 2021, argued the order violated the Arkansas Constitution, or that Baptist’s conduct fell under the exception from immunity.
After the lower court denied its motion to dismiss, Baptist appealed. Baptist argued that, under the Arkansas rules of procedure and case law, an appeal may be taken from an order denying a motion to dismiss based on an assertion of immunity from suit.
But the court noted the precedent allowing such appeals involved a state’s defense of sovereign immunity or the immunity of a government official, neither of which was at issue in the instant action.
The court also pointed out that the executive order did not provide immunity from suit, only from liability, which is a defense to a suit.
“The rationale for an interlocutory appeal is that the right to immunity from suit is effectively lost if the case is permitted to go to trial,” the court noted. “[B]ecause the immunity at issue is one of liability rather than immunity from suit, we apply our general rule that an appeal may not be taken from an order denying a motion to dismiss,” the court said.
Baptist Health v. Sourinphoumy, No. CV-22-443 (Ark. Feb. 23, 2023).