General Background
In March 2020, Indiana Governor Eric Holcomb issued an Executive Order, declaring the COVID-19 pandemic a public health emergency under Indiana Code § 10-14-3-12(a). Later that month, the Secretary of the United States Department of Health and Human Services (HHS) likewise declared a federal public health emergency. The HHS public health emergency, issued under the Public Health Service Act, was rescinded on May 11, 2023, although some liability protections remained under the Public Readiness and Emergency Preparedness Act (PREP Act).
These emergency declarations have prompted federal and state governments to address the issue of liability for patients injured or killed during treatment of the virus.
Case[1] Background
Elmer Waggoner was hospitalized in January 2022 after testing positive for COVID-19 and developing pneumonitis. He embarked on a series of Kentucky hospital transfers over the course of which he was intubated and placed on a ventilator requiring medically-induced paralysis. He also developed a pressure wound on his lower back and began wound care.
By March 2022, he was still on a ventilator, but he no longer tested positive for COVID-19. His pressure wound continued to worsen, and he developed necrosis. Waggoner died on March 29. His cause of death was listed as cardiopulmonary arrest with the contributing factors of acute hypoxic and hypercapnic respiratory failure, sepsis, and necrotizing fasciitis. Governor Holcomb had rescinded Indiana’s COVID-19 state of emergency on March 3, 2022.
Waggoner’s widow, Shantel, filed a proposed complaint with the Indiana Department of Insurance[2] alleging that over 80 proposed Defendants (including hospitals and doctors) committed medical malpractice while treating the pressure wound.
Procedural History
In July 2023, one of the Defendants requested the formation of a medical review panel to render an opinion on whether there had been a breach of the standard of care.
Prior to the formation of the panel, however, Defendants filed a petition in the Vanderburgh County Superior Court for preliminary determination and motion for summary judgment. Defendants argued that because their treatment of Waggoner was during the COVID-19 emergency and all his care was in treatment of his COVID-19 infection and the resulting complications, they were immune from liability under Indiana’s Healthcare Immunity Act, the Premises Immunity Act, and the PREP Act (collectively, the “Immunity Statutes”).
Waggoner’s Estate argued that the trial court lacked subject matter jurisdiction to make a preliminary determination on immunity and that Defendants’ motion for summary judgment required a determination of medical causation, which, under the Medical Malpractice Act, fell under the medical review panel’s subject matter jurisdiction. The trial court granted Defendants’ motion for summary judgment and dismissed the complaint with prejudice. That court found that Defendants were afforded statutory immunity under the Immunity Statutes because Waggoner’s care arose from the COVID-19 emergency, even though some of his care occurred after the state’s emergency order expired.
On appeal, the Court of Appeals unanimously reversed, holding that the immunity issue was reserved for the medical review panel.[3] The Court noted that the Estate’s expert had opined that Waggoner’s death was the result of inadequate treatment of his pressure wound, not his COVID-19 symptoms, and that Defendants did not have immunity because the Indiana state of emergency had been rescinded during his care.
Defendants petitioned for transfer to the Indiana Supreme Court.
Supreme Court’s Decision
Summary Judgment Analysis
The Supreme Court determined that for summary judgment purposes, no dispute existed as to whether Waggoner’s treatment arose from COVID-19. It therefore concluded that the trial court could make a preliminary determination on immunity by interpreting the applicable statutes without the medical review panel’s opinion.
In Waggoner, the Court concluded that statutory immunity did not require expert opinion. Therefore, Defendants could pursue their motions in state court while the medical review panel proceeding continued.
Immunity Analysis
The Court then turned to the three Immunity Statutes.
First, it concluded that Defendants were immune under the HIA and PIA. The HIA applied because Waggoner’s treatment arose from COVID-19 and began while a state emergency was in effect, regardless of when the emergency was rescinded. The PIA applied because Waggoner’s death arose from Defendants’ services related to COVID-19, regardless of his COVID-19 testing status at the time of his final transfer.
The Court then turned to the PREP Act. It held that the federal Act still provided immunity, even if the expiration of the state disaster emergency had terminated immunity, and even if the Estate designated evidence of gross negligence.[4] The PREP Act preempts state-law claims (such as negligence) to the extent they relate to the administration of “covered countermeasures” (i.e., “qualified pandemic or epidemic products” such as ventilators). In those circumstances, the plaintiff’s exclusive remedy is to seek compensation from the federal Covered Countermeasures Process Fund.
The entirety of Waggoner’s treatment fell within the federal public health emergency, and his injuries stemmed from a ventilator used in response to COVID-19. Because the FDA authorized ventilators for emergency use in treating COVID-19, they qualified as “covered countermeasures,” and Defendants were therefore immune for providing a covered countermeasure during a public health emergency. This was true for both federal and state claims.[5]
The Court also rejected the Estate’s argument that Waggoner’s death arose from a pressure wound rather than COVID-19, reasoning that he would not have developed the pressure wound or required a ventilator if he hadn’t suffered respiratory failure from COVID-19.
Based on the Immunity Statutes, the Court concluded that Defendants were immune from civil liability and affirmed the trial court’s grant of summary judgment.
Implications for the Future
While the end of COVID-19 litigation is not likely in sight, Waggoner provides Indiana practitioners and claimants alike with much-needed clarification as to what claims can proceed, where they may be brought, and what pitfalls may arise.
As in any legal matter, it’s critical to consult experienced counsel who are well versed in the intricacies of the process and capable of representing affected parties in the appropriate venue.
[1] Shantel Waggoner, Individually and as Executrix of the Estate of Elmer Gordon Waggoner v. Anonymous Health System, Inc., et al, Ind. Sup. Ct. 26S-CT-71 (March 4, 2026).
[2] A prerequisite in Indiana to litigating a medical malpractice claim, where the plaintiff seeks recovery under the State’s Patient Compensation Fund.
[3] Waggoner v. Anonymous Healthcare Sys., Inc., 250 N.E.3d 1091, 1094 (Ind. Ct. App. 2025).
[4] Although the HIA and PIA include exceptions to immunity (e.g., for gross negligence, willful or wanton misconduct, fraud, or intentional misrepresentation under the HIA, and for gross negligence or willful or wanton misconduct under the PIA), the Court rejected the Estate’s arguments on those grounds.
[5] Like the HIA and PIA, the PREP Act does provide for an exception to immunity. However, the exception is for an exclusive federal cause of action for death or serious physical injury proximately caused by willful misconduct. Further, any such claim must be brought in the United States District Court for the District of Columbia. Because the Estate did not raise the claim in federal court, the PREP Act’s exception to immunity did not apply.