Background
In September 2020, Robert Blake Burgess, a 21-year-old University of Oklahoma student, tested positive for COVID-19 and developed worsening chest pain and shortness of breath. His mother took him to the emergency room at Integris Health Edmond on September 14, 2020, where Dr. Bret Langerman evaluated him. Dr. Langerman used the Pulmonary Embolism Rule-Out Criteria (PERC rule) to assess and ultimately rule out pulmonary embolism, interpreting Blake’s EKG and chest x-ray as unremarkable—though post-discharge readings by a cardiologist and radiologist found both results abnormal. Blake was discharged. Hospital cardiologists and radiologists documented the abnormalities in Blake’s online patient portal, but there is no evidence anyone notified Blake directly.
A critical gap in communication arose from Integris’s COVID-19 infection-control policies. Those policies barred Blake’s mother from accompanying him into the treatment area and required the registration clerk to remain at the entry checkpoint at all times. Blake’s mother handed the clerk a written note disclosing a family history of antithrombin III deficiency—a hereditary blood-clotting disorder—and asked that it be delivered to the treating physician. Because the clerk could not leave her post, the note was never delivered to Dr. Langerman and Blake’s chart contained no mention of the condition. Dr. Langerman later testified that knowledge of the deficiency, combined with Blake’s chest pain and shortness of breath, would have prompted further diagnostic workup, likely including a CT angiogram.
Blake’s condition deteriorated over the following weeks. He lost consciousness on September 23 and refused ambulance transport, signing a refusal-of-care form after paramedics evaluated him and found no apparent emergency. He collapsed again on September 28 and was transported to a different hospital, where he died on October 4, 2020. His death certificate listed cardiac arrest as a consequence of pulmonary embolism with an underlying cause of COVID-19. His parents filed a wrongful death and medical negligence action against Integris, Dr. Langerman, and Emergency Services of Oklahoma, P.C. A jury awarded $10 million, reduced to $7.5 million after finding Blake 25% contributorily negligent. Providers appealed, and the Oklahoma Supreme Court retained the case.
The Court’s Holding
The Oklahoma Supreme Court reversed the judgment and remanded for a new trial, holding that Providers are immune from ordinary negligence claims under Oklahoma’s COVID-19 Public Health Emergency Limited Liability Act, 63 O.S. 2020 § 6406. The statute immunizes health care providers from civil liability for acts or omissions occurring in the course of providing COVID-19 health care services when the patient was “impacted” by the facility’s COVID-era decisions, activities, staffing, or capacity—provided the conduct did not constitute gross negligence or willful and wanton misconduct. The court held that the “impact” requirement was satisfied as a matter of law: Integris’s COVID-19 visitor prohibition and checkpoint staffing policy directly prevented Blake’s mother from communicating his family history of antithrombin III deficiency to Dr. Langerman, affecting his diagnostic decision-making. Because only one reasonable inference could be drawn from this undisputed evidence, the issue should never have gone to the jury as a threshold question. The trial court committed reversible error by allowing the jury to find liability for ordinary negligence; on remand, the sole jury question on the immunity defense will be whether Providers’ conduct amounted to gross negligence or willful and wanton misconduct.
On the federal PREP Act question, the court held that Providers are not immune. The PREP Act shields “covered persons” only for the administration or use of “covered countermeasures”—specific medical products authorized for use in a declared public health emergency. The trial court had previously found, and the Supreme Court agreed, that Providers did not administer any covered countermeasure to Blake; his treatment consisted of a standard emergency evaluation, not the deployment of a pandemic-specific medical product. The court further held that the PREP Act does not completely preempt state-law claims and that state courts have jurisdiction to evaluate the immunity defense—but where, as here, PREP Act immunity does not apply, the ordinary negligence claim proceeds under state law without federal preemption.
The court also upheld the trial court’s directed verdict in favor of the parents on the intervening/supervening causation defense. Blake’s refusal of ambulance transport on September 23 and his failure to seek follow-up care did not constitute a superseding cause that broke the chain of liability as a matter of law; those facts were instead properly addressed through the contributory negligence framework that the jury applied.
Key Takeaways
- Oklahoma’s COVID-19 Act immunity covers ordinary negligence claims when a patient with a confirmed COVID-19 diagnosis was “in some way affected” by a facility’s pandemic-era policies—a threshold the court characterizes as not high but not automatic, requiring evidentiary support.
- COVID-19 visitor and access-control policies that foreseeably disrupted the communication of a patient’s medical history can satisfy the Act’s “impact” requirement as a matter of law, shifting the only triable issue to whether the provider was grossly negligent or acted willfully and wantonly.
- The federal PREP Act does not shield providers from liability for routine diagnostic and treatment decisions; immunity attaches only to the actual administration or use of designated covered countermeasures such as vaccines or specific authorized therapeutics.
- State courts have jurisdiction to evaluate PREP Act immunity as an affirmative defense; a finding that immunity does not apply leaves the state-law claim intact without federal preemption.
- A patient’s refusal of ambulance transport and failure to seek follow-up care, while relevant to contributory negligence, do not automatically constitute a superseding cause that relieves a health care provider of liability.
Why It Matters
This decision is significant for health care litigation arising from the COVID-19 era in Oklahoma and potentially persuasive beyond it. By holding that widely adopted pandemic policies—visitor bans, checkpoint staffing requirements, isolation protocols—can satisfy the “impact” element of Oklahoma’s COVID-19 immunity statute as a matter of law, the court substantially limits the scope of ordinary negligence claims against hospitals and providers who implemented those policies in good faith. Plaintiffs in similar cases will need to focus their claims on gross negligence or willful and wanton conduct, a considerably higher bar than ordinary negligence.
At the same time, the court’s PREP Act analysis adds Oklahoma to the growing list of state and federal courts that have rejected broad PREP Act immunity arguments in cases involving routine clinical care. The decision draws a clear line: pandemic-era policies that touch a patient’s care invoke state COVID immunity statutes, while the federal PREP Act is reserved for the administration of specific countermeasures such as vaccines and authorized therapeutics. Hospitals and their insurers litigating wrongful death claims arising from 2020–2021 COVID-era care will need to carefully separate these two distinct immunity frameworks when assessing exposure.