INDIANAPOLIS — A grandson mourning the death of his grandfather wants Indiana legislators to revisit two laws passed earlier this year that made it more difficult to file civil lawsuits involving COVID-19.
Daniel Enlow’s search for answers has only intensified since the death of his grandfather, Edward Rigney, in February. An 83-year-old COPD patient diagnosed with COVID-19, Rigney checked into Eskenazi Hospital just after Christmas.
At the time, Enlow said he was unable to visit due to pandemic restrictions, so he was not present when Rigney suffered a stroke in early January that left him unresponsive until his death.
“I’m so motivated to try and get his story out there and just try to get something, some kind of justice for him,” Enlow said.
Medical records, along with Rigney’s death certificate, note an “iatrogenic air embolus,” or air bubbles released into his veins during a medical procedure. A doctor noted, “It appears that air was introduced … at the time of (a) line placement or shortly after,” something Enlow believes should not have happened.
“I started asking for medical records because I wanted to know what was happening leading up to it in black and white in front of me,” Enlow said.
Rigney’s death certificate includes multiple contributing factors, including COVID-19. Enlow wanted to file a medical malpractice claim, to ask a review panel of doctors to weigh in, but multiple law firms declined to take his case.
In emails, one law firm noted the case “would be difficult to win,” while another pointed to “new COVID immunity laws” in its denial.
“They pretty much just put a wall up,” Enlow said.
Fred Schultz, outgoing president of the Indiana Trial Lawyers Association, told CBS4 he was not surprised by Enlow’s difficulty securing an attorney. Schultz lobbied against two bills at the Statehouse this year, SB1 and HB1002, which provided civil immunity in COVID-19 cases. The bills raised the bar to file a medical malpractice claim when COVID-19 in involved, to allow only those that involve “gross negligence or willful or wanton misconduct.”
“In the vast majority of cases, it’s impossible to prove that,” Schultz said. “My office has probably had a dozen cases that we’ve had to decline so far.”
CBS4 took this issue to one of the bill’s sponsors, State Senator Aaron Freeman (R-Indianapolis), an attorney himself.
“It was never designed to be a blanket freedom of everything,” Freeman said.
Freeman noted that the bills were designed to take into account the unprecedented and unknown factors of the pandemic, though he did remain open to exploring any potential unintended consequences.
“If something is being used in a way that it is a complete bar to certain claims, then maybe we need to go back and look at it and open that up a little bit and make it less restrictive, I’m certainly open to having those conversations,” Freeman said.
Enlow hoped that speaking about his grandfather’s case would open that door to more conversation, as he pores through thousands of pages of medical records, in an effort to at least get a chance to pursue answers in the midst of his grief.
“Maybe one day I’ll know exactly what happened, but until that day I’m not stopping,” Enlow said.
Eskenazi Health declined to comment about Rigney’s case, citing patient privacy laws. The Indiana Hospital Association sent the following statement:
“Civil liability protection passed by the Indiana General Assembly this session was supported by a wide range of businesses, universities, manufacturers, health care providers and others in Indiana. Like many essential Hoosier workers, health care providers worked tirelessly throughout the pandemic to comply with everchanging guidelines and protocols from regulatory bodies. Many of these unique challenges were never anticipated under Indiana’s existing civil liability statute. The new law does not stop Hoosiers or their families from bringing claims and does not provide businesses and other entities with immunity for gross negligence, which is a well-established standard in case law.”Brian Tabor, Indiana Hospital Association President