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*********************************************** 
KRISTIN MILLS, ADMINISTRATOR (ESTATE OF

CHERYL MILLS) v. HARTFORD HEALTHCARE

CORPORATION ET AL.

(SC 20763)

(SC 20764)

(SC 20765)

McDonald, D’Auria, Mullins, Ecker and Seeley, Js.

Syllabus

The plaintiff, the administrator of the estate of the decedent, C, sought to

recover damages from the named defendant, H Co., which operates

Hartford Hospital, and the defendant physicians, R, B, D, and F, for the

allegedly wrongful death of C. In March, 2020, shortly after the onset

of the COVID-19 pandemic, C went to the emergency room at a hospital

in Norwich complaining of a sore throat and a headache. The emergency

room staff suspected that C was experiencing a myocardial infarction.

Because the Norwich hospital did not have a cardiac catheterization

lab, C was transferred to Hartford Hospital, where such facilities are

available. At that hospital, C was examined by R, an interventional

cardiologist. H Co., however, had recently modified its protocols due

to the pandemic, and patients who were suspected of having COVID19 were not to be admitted to the hospital’s catheterization lab until

they tested negative for COVID-19, unless their physical symptoms dictated the need for emergency catheterization. R was concerned that C

could have COVID-19 and doubted that she was suffering from a myocardial infarction, insofar as he believed that C’s symptoms were most

consistent with COVID-19 induced myocarditis or myopericarditis rather

than a myocardial infarction. Accordingly, R developed a treatment plan

pursuant to which C would be tested for COVID-19 and her admission

to the catheterization lab would be deferred pending the receipt of a

negative COVID-19 test result. A COVID-19 diagnostic test was administered on March 21, 2020, and, while it was in process over the next

several days, B, D, and F became involved in C’s care. On March 24,

2020, C’s test result came back as negative. F was the only physician

responsible for C’s care after the receipt of the negative test result. On

March 25, 2020, F ordered that C undergo a coronary angiogram in the

hospital’s catheterization lab, but C died of a myocardial infarction

before the procedure was administered. The plaintiff alleged that the

defendant physicians, and, through them, H Co., were negligent and

grossly negligent in their treatment of C, insofar as C died after she was

misdiagnosed as having non-life-threatening myocarditis or myopericarditis, when she actually was suffering from a life-threatening myocardial

infarction. The defendants moved to dismiss the plaintiff’s action, claiming that they were immune from liability and suit under Executive Order

No. 7V, § 6, which was issued by Governor Ned Lamont in April, 2020,

and which confers on health care professionals and health care facilities

‘‘immunity from suit for civil liability for any injury or death alleged to

have been sustained because of . . . acts or omissions undertaken in

good faith while providing health care services in support of the [s]tate’s

COVID-19 response . . . .’’ The defendants also claimed that they were

immune under the provision (42 U.S.C. § 247d-6d) of the federal Public

Readiness and Emergency Preparedness Act (PREP Act) that confers

immunity from suit and liability for injuries sustained as a result of the

application or use of certain pandemic countermeasures, such as COVID19 diagnostic tests. The trial court ultimately granted the motions to

dismiss with respect to the claims directed at the defendant physicians’

acts or omissions that occurred before the receipt of C’s negative COVID19 test result on March 24, 2020, but denied one of the motions to

dismiss with respect to claims directed at acts or omissions occurring

after that time. As to the immunity conferred under Executive Order

No. 7V, the court reasoned that, before the negative test result was

received, the defendant physicians were providing health care services

in support of the state’s response to the pandemic because, at that time,
they had a good faith belief that they may be treating an actual COVID19 patient, but the defendant physicians could not claim to be providing

health care services in support of the state’s COVID-19 response after

they received the negative test result. Similarly, with respect to the

immunity conferred under the PREP Act, which, unlike Executive Order

No. 7V, affords immunity for gross negligence, as well as negligence,

the trial court determined that the defendants were immune for only

those acts and omissions, whether negligent or grossly negligent, that

occurred before the receipt of the negative COVID-19 test result because

they related to, and arose out of, a COVID-19 diagnostic countermeasure,

namely, the administration of C’s COVID-19 diagnostic test. Accordingly,

because R, B, and D were not involved in C’s treatment after the receipt

of the negative COVID-19 test result, the court dismissed all of the claims

against them, leaving F as the only remaining individual defendant based

on his role in C’s care after the receipt of the negative COVID-19 test

result on March 24, 2020. The plaintiff, H Co., and F filed separate

appeals. On appeal, the plaintiff challenged the court’s dismissal of the

counts directed at R, B, and D, alleging negligence before C’s negative

COVID-19 test result was received. H Co. and F challenge the court’s

decision not to dismiss the plaintiff’s claims relating to acts or omissions

after the receipt of the negative COVID-19 test result. Held:

1. The trial court correctly determined that, under Executive Order No.

7V, the defendants were immune for any negligent acts or omissions

occurring before, but not after, the receipt of C’s negative COVID-19 test

result, and, therefore, the court properly dismissed the counts alleging

negligence against R, B, and D, and properly declined to dismiss the

count alleging negligence with respect to F’s acts or omissions after the

receipt of C’s negative COVID-19 test result:

a. This court concluded that Executive Order No. 7V, § 6, confers immunity from suit and liability only for acts and omissions that are undertaken

in good faith and in connection with the provision of health care services

in support of the state’s COVID-19 response, which necessarily would

include those undertaken for the prevention, diagnosis, or treatment of

COVID-19, and that a health care provider or facility seeking immunity

under that provision is required to demonstrate a nexus between the

alleged negligence and the services rendered in support of the state’s

COVID-19 response.

In determining the scope of the immunity conferred by Executive Order

No. 7V, this court applied the usual principles of statutory interpretation

in construing the language of the executive order, and, because this court

determined that the provision therein conferring immunity to covered

individuals and facilities for ‘‘acts or omissions undertaken in good faith

while providing health care services in support of the [s]tate’s COVID19 response’’ was ambiguous, it looked to the circumstances surrounding

the order’s promulgation and to the public policy that the order was

designed to implement.

When Governor Lamont issued Executive Order No. 7V, the nature of

COVID-19 was poorly understood, the belief that hospitals were about

to be overwhelmed was widespread, and the evident purpose of the

immunity provision was to facilitate the implementation of certain policies that would augment Connecticut’s health care workforce by assuring

health care professionals and facilities that, in light of the uncertainties

surrounding the diagnosis, treatment, and prevention of COVID-19, and

in view of the compelling need to keep health care facilities open and

operating, they would not be held liable for their acts and omissions

undertaken in good faith and in support of the state’s COVID-19 response.

In light of the language of the immunity provision and the policies that

it was intended to advance, this court rejected both a narrow interpretation of Executive Order No. 7V, § 6, pursuant to which a health care

provider is immune from liability and suit only for acts or omissions

undertaken while treating a patient for COVID-19, and a broad interpretation, pursuant to which a health care provider is immune from liability and

suit for any acts or omissions undertaken while the provider’s services

coincide with the effective period of the declared public health emergency, regardless of whether the acts or omissions are connected to

those services, and, instead, it adopted an interpretation between those

two ends of the spectrum pursuant to which immunity is conferred when

the acts or omissions that caused the patient to suffer an injury are
connected to the health care provider’s services in support of the state’s

COVID-19 response, even if the defendant was not treating the patient

for COVID-19.

This interpretation of Executive Order No. 7V, § 6, was supported by

the plain language in the second part of the immunity provision, providing

that the scope of the immunity includes, but is not limited to, ‘‘acts or

omissions undertaken because of a lack of resources, attributable to the

COVID-19 pandemic, that renders the health care professional or heath

care facility unable to provide the level or manner of care that otherwise

would have been required in the absence of the COVID-19 pandemic

and which resulted in the damages at issue,’’ insofar as that language

plainly requires the act or omission to have a connection to the COVID19 pandemic for immunity to apply, and construing the first part of

the immunity provision to require a similar nexus between the alleged

negligence and the COVID-19 pandemic created a harmonious and consistent whole.

b. The plaintiff could not prevail on her claim that the trial court improperly had dismissed the counts of her complaint alleging negligence with

respect to the defendant physicians’ acts or omissions occurring before

the receipt of C’s negative COVID-19 test result:

Notwithstanding the plaintiff’s argument that, but for the defendant physicians’ alleged misdiagnosis, C’s COVID-19 status would have been

deemed irrelevant for purposes of the plaintiff’s negligence claim, and

the fact that, if C had been experiencing a myocardial infarction, the

defendant physicians should have promptly admitted her to the hospital’s

cardiac catheterization lab, the immunity conferred by Executive Order

No. 7V does not turn on whether the defendant physicians’ acts or

omissions were negligent but, rather, on whether those acts or omissions

had a connection to health care services provided in support of the

state’s COVID-19 response.

In the present case, the plaintiff offered no evidence to dispute the

affidavits submitted by the defendant physicians, in which they attested

that C’s COVID-19 status was a material factor in diagnosing C and

deciding on her treatment and care, the defendant physicians’ reliance

on the COVID-19 protocol instituted by H Co. underscored the fact

that their acts or omissions, regardless of whether they were negligent,

occurred in the course of providing health care services in support of

the state’s COVID-19 response, and the diagnosis and treatment of a

patient with health care complications that the provider believed in good

faith were caused by COVID-19 clearly constituted acts or omissions

connected to the provision of health care services in support of the

state’s COVID-19 response for purposes of Executive Order No. 7V.

Moreover, there was no merit to the plaintiff’s claim that Executive

Order No. 7V requires an objectively reasonable belief that the health

care provider’s provision of services was in support of the state’s COVID19 response, as the immunity provision therein includes no such requirement, and the plaintiff’s claim conflates the issues of immunity and

liability and fails to contemplate that, in the present case, the alleged

misdiagnosis of C and C’s COVID-19 status were inextricably linked,

insofar as the defendant physicians submitted undisputed evidence that

they believed that C’s symptoms were caused by COVID-19, and their

treatment plan was informed by that provisional diagnosis.

c. F and H Co. could not prevail on their claims that the trial court

incorrectly had determined that they were not immune under Executive

Order No. 7V for F’s allegedly negligent acts and omissions after the

receipt of C’s negative COVID-19 test result:

The receipt of C’s negative test result broke any meaningful connection

between F’s treatment of C and his provision of health care services in

support of the state’s COVID-19 response because, at that point, F simply

was providing treatment to a patient who, three days earlier, had received

test results possibly indicating a myocardial infarction, and, although

the provisional diagnosis of a possible COVID-19 infection had caused

the delay in diagnosing and treating C’s true condition, COVID-19 had

no bearing on the nature of the health care services that were rendered

after the negative test result was received, thereby rendering immunity

unavailable under the terms of Executive Order No. 7V for acts and
omissions occurring after that point in time.

Moreover, contrary to F’s and H Co.’s claims that COVID-19 continued

to bear on the nature of the health care services that F provided despite

the receipt of C’s negative COVID-19 test, the decisions made concerning

C’s care after COVID-19 had been ruled out were not dictated by the

COVID-19 diagnosis but, rather were the result of learning that C did

not have COVID-19 and the delay driven by suspicion of a COVID-19

induced condition having come to an end.

Furthermore, there was no merit to F’s claim that he and H Co. were

immune from liability because there was nothing that he reasonably

could have been expected to do to prevent C’s death once her negative

test result was received, as that claim conflated immunity and liability,

or his claim that this court’s conclusion would lead to an absurd result

by bifurcating the immunity analysis on the basis of whether the care

F provided occurred before or after the receipt of C’s COVID-19 test

result, and there was nothing in the record to support the contention of

H Co. that its COVID-19 protocol hampered the defendant physicians’

ability to provide treatment to C after the receipt of her negative COVID19 test result.

d. This court declined to address certain additional issues regarding the

governor’s statutory and constitutional authority to confer immunity

from suit and liability for medical malpractice:

Although the parties cited constitutional considerations in connection

with their arguments as to the scope of immunity afforded under Executive Order No. 7V, § 6, the plaintiff did not challenge the governor’s

authority to confer such immunity, and, although this court ordered

supplemental briefing on this issue and related issues, which were of a

sufficiently public character to warrant this court’s review, supplemental

briefing, in light of its limitations, did not provide a sufficiently robust

platform to address those issues.

Accordingly, this court assumed, without deciding, that the governor

was legally authorized to confer the immunity at issue through an executive order.

2. The trial court incorrectly concluded that, under the federal PREP Act,

the defendants were immune from suit and liability for their allegedly

negligent and grossly negligent acts or omissions occurring before the

receipt of C’s negative COVID-19 test result, and, accordingly, this court

reversed the trial court’s decision insofar as that court dismissed the

counts of the complaint alleging grossly negligent acts or omissions by

R, B, and D prior to the receipt of the negative COVID-19 test result:

a. The trial court incorrectly concluded that the defendants were immune

from suit and liability under the PREP Act for their conduct, including

their allegedly grossly negligent acts or omissions, occurring before the

receipt of the negative COVID-19 test result:

In determining whether PREP Act immunity applies, courts focus on the

claims as they are pleaded in the plaintiff’s complaint.

The immunity conferred by the PREP Act, as it relates to what constitutes

a covered countermeasure, is narrow in scope and far less encompassing

than the immunity conferred by Executive Order No. 7V, as the PREP

Act does not apply to all medical services provided in an attempt to

diagnose, treat, or prevent the spread of COVID-19, and, although a

countermeasure under the PREP Act includes the administration of a

COVID-19 diagnostic test, it does not include protocols or policies

designed or implemented for the prevention or control of COVID-19, such

as H Co.’s protocol with respect to the admission of patients suspected

of having COVID-19 to the hospital’s cardiac catheterization lab.

In the present case, the plaintiff alleged, inter alia, that the defendant

physicians were both negligent and grossly negligent in failing to diagnose

C with a myocardial infarction, and Executive Order No. 7V, § 6, does

not confer immunity for allegedly grossly negligent acts or omissions.

The mere fact that the defendant physicians administered and used a

COVID-19 test did not, in and of itself, dictate whether they should

proceed with treatment while the test result was pending, and that decision was driven, rather, by the defendant physicians’ provisional COVID-
19 diagnosis and H Co.’s protocol, and there would have been no delay

attributable to the defendant physicians if they had immediately diagnosed her with a myocardial infarction, despite suspecting that she suffered from COVID-19, and had immediately admitted her to the hospital’s

cardiac catheterization lab while the COVID-19 test result was pending,

as the plaintiff alleged they should have done.

Accordingly, in light of the plaintiff’s allegations in her complaint, the

defendant physicians’ gross negligence was not causally related to and

did not arise out of the administration or use of the COVID-19 diagnostic

test within the meaning of the PREP Act.

b. The trial court correctly concluded that F and H Co. were not immune

from suit and liability under the PREP Act for F’s allegedly negligent

acts or omissions occurring after the receipt of C’s negative COVID-19

test result:

In light of this court’s conclusion that the PREP Act does not confer

immunity from suit and liability for the allegedly negligent conduct of

R, B, and D before the receipt of C’s negative COVID-19 test result, the

PREP Act did not afford F immunity for his allegedly negligent conduct

after receipt of the test result because, if there was no allegation of any

causal relationship between the administration of the COVID-19 test and

the plaintiff’s allegations of negligence relating to acts or omissions

before the receipt of the test result for purposes of the PREP Act, the

receipt of the test result could not have created such a connection.

Accordingly, the plaintiff was entitled to proceed on the counts of her

complaint alleging gross negligence as to all of the defendants and the

counts of her complaint alleging negligence as to F and H Co.

Argued April 27—officially released August 8, 2023*

Procedural History

Action to recover damages for, inter alia, the defendants’ alleged medical malpractice, brought to the Superior Court in the judicial district of Hartford, where the

court, Budzik, J., granted the motions to dismiss filed

by the named defendant et al. and the defendant Melissa

Ferraro-Borgida et al. and denied the motion to dismiss

filed by the defendant William J. Farrell, and the defendant William J. Farrell, the named defendant and the

plaintiff filed separate appeals. Reversed in part; further proceedings.

Richard A. O’Connor, with whom, on the brief, were

Michael G. Rigg and Rebecca N. Brindley, for the appellant in SC 20763 (defendant William J. Farrell).

Wesley W. Horton, with whom were Brendan N.

Gooley and Kenneth J. Bartschi and, on the brief, John

C. Pitblado, Jonathan Friedler and Lauren Graham,

for the appellant in SC 20764 and the appellee in SC

20763 and SC 20765 (named defendant) and the appellee

in SC 20763, SC 20764, and SC 20765 (defendant

Asad Rizvi).

James P. Sexton, with whom were John R. Weikart

and, on the brief, Gail Oakley Pratt and Megan L. Wade,

for the appellant in SC 20765 and the appellee in SC

20763 and SC 20764 (plaintiff).

Stuart C. Johnson, with whom, on the brief, were

April H. Rosenkrantz and Andrew S. Wildstein, for

the appellees in SC 20765 (defendant Melissa FerraroBorgida et al.).

Joshua Perry, solicitor general, with whom were
Michael K. Skold, deputy solicitor general, and, on the

brief, William Tong, attorney general, for the state of

Connecticut as amicus curiae.

Jennifer L. Cox and Jennifer A. Osowiecki filed a

brief for the Connecticut Hospital Association as amicus curiae.

Bryan M. Killian filed a brief for the United States

Chamber of Commerce as amicus curiae.

Keith M. Blumenstock, David J. Robertson and Jeannine M. Foran filed a brief for Athena Health Care

Associates, Inc., as amicus curiae.
Opinion

ECKER, J. This court recently discussed the legality

of certain executive orders issued by Governor Ned

Lamont in response to the catastrophic effects of the

pandemic caused by the spread of the potentially fatal

coronavirus disease 2019 (COVID-19). See Casey v.

Lamont, 338 Conn. 479, 481–83, 258 A.3d 647 (2021).

The present appeals require us to consider the scope

and application of Executive Order No. 7V, which purports to confer immunity on health care providers in

connection with Governor Lamont’s March, 2020 declaration of a public health emergency.1 We also must

address similar questions with respect to 42 U.S.C.

§ 247d-6d, a provision in the federal Public Readiness

and Emergency Preparedness Act (PREP Act) that confers immunity from suit and liability for injuries sustained as the result of the application or use of certain

pandemic countermeasures (e.g., COVID-19 diagnostic tests).2

These issues arise in the context of a wrongful death

action filed by the plaintiff, Kristen Mills, the daughter

of the decedent, Cheryl Mills, and the executor of her

estate. The complaint alleges that the decedent died

after she was misdiagnosed as having a non-life-threatening heart condition, when she actually was suffering

from a life-threatening heart condition. According to

the complaint, her death was the result of negligent and

grossly negligent medical care provided by the named

defendant, Hartford HealthCare Corporation, doing

business as Hartford Hospital (hospital), and the defendant physicians, Asad Rizvi, Melissa Ferraro-Borgida,

Brett H. Duncan, and William J. Farrell.3 The defendants

moved to dismiss the complaint on the ground that they

were immune from suit and liability under Executive

Order No. 7V and the PREP Act in light of the role that

COVID-19 had played in their diagnosis and treatment

decisions. The trial court concluded that the defendants

had immunity under Executive Order No. 7V for the

allegedly negligent acts and omissions undertaken

before the receipt of the decedent’s negative COVID19 test result and immunity under the PREP Act for the

allegedly grossly negligent acts and omissions undertaken during that same period. The court consequently

granted the motions to dismiss the counts against Rizvi,

Ferraro-Borgida, and Duncan. The court further concluded, however, that the only physician responsible

for the decedent’s care after receipt of the negative

test result, Farrell, did not have immunity under either

Executive Order No. 7V or the PREP Act. The trial court

accordingly denied the motion to dismiss the counts

alleging negligence and gross negligence against Farrell.

In SC 20765, the plaintiff appeals from the trial court’s

judgment insofar as it granted the defendants’ motions

to dismiss. In SC 20763 and SC 20764, Farrell and the

hospital, respectively, appeal from the denial of their
motions to dismiss.4 We disagree with the trial court’s

conclusions only insofar as it determined that the defendants were entitled to immunity under the PREP Act.

We therefore reverse the trial court’s judgment dismissing counts V, VI, and VII of the complaint. We affirm

the judgment in all other respects.

The following facts are taken primarily from the allegations in the complaint, supplemented by certain additional facts contained in affidavits submitted by the

parties in connection with the motions to dismiss. See,

e.g., Carpenter v. Daar, 346 Conn. 80, 97–99 n.12, 287

A.3d 1027 (2023). On the morning of March 21, 2020,

the decedent, who worked as a registrar in the emergency room at Backus Hospital (Backus) in Norwich,

went to the Backus emergency room complaining of

having a sore throat and a headache for the past few

days.5 She informed the staff about her medical history,

including the fact that she had a heart murmur and

needed a heart valve replacement. She denied feeling

any pain in her chest, arm or back, or any shortness of

breath at rest. In light of concerning indications on her

cardiac monitor, Backus staff had the decedent undergo

an electrocardiogram at approximately 12:08 p.m. That

test showed rapid atrial fibrillation and an ‘‘ST elevation.’’ Theresa Adams, an emergency medicine physician at Backus, suspected that the decedent was

experiencing an ‘‘ST elevation myocardial infarction’’

(STEMI) or, in common parlance, a heart attack.

A patient suffering from an acute STEMI should

receive coronary intervention in a cardiac catheterization lab,6

ideally within ninety minutes. Because Backus

did not have the facilities to provide cardiac catheterization, Adams called the hospital, where such facilities

are available for both diagnostic and interventional purposes, to arrange for the decedent’s transfer.

The hospital had recently modified its protocols due

to concerns relating to the spread of COVID-19. One

such modification directed health care providers to

‘‘avoid admitting patients who were suspected of having

COVID-19 to [the hospital’s] cardiac catheterization lab

. . . until they had tested negative, unless their physical symptoms dictated the need for emergency catheterization.’’7

(Emphasis added.) The purpose of the

modified protocol was to prevent the spread of COVID19 to other patients and staff and to conserve supplies

of personal protective equipment.

At approximately 12:12 p.m., Adams spoke to Rizvi,

the interventional cardiologist on call in the hospital’s

catheterization lab. In light of the notable absence of

cardiac symptoms in the decedent’s presentation, her

medical history, and her high risk of exposure to

COVID-19 based on her employment in a hospital emergency room, Rizvi opined that the decedent did not

meet the criteria for transfer to the catheterization lab.

Rizvi expressed concern that the decedent could have
COVID-19 and doubted that she was suffering from a

STEMI. Rizvi recommended that the decedent be transferred to the hospital’s emergency room.

Before her transfer from Backus to the hospital at

approximately 1:14 p.m., the decedent’s troponin levels8

reached 8.6 nanograms per milliliter, and Backus emergency department staff believed that the decedent was

critically ill with a high probability of imminent or lifethreatening deterioration. Updated medical information

was electronically relayed to Rizvi.

After the decedent’s transfer to the hospital, Rizvi

examined her and continued to suspect that she was

suffering from a COVID-19 induced condition. Rizvi was

aware that patients suffering from certain viruses,

including COVID-19, could present with an ST elevation

and abnormal troponin levels as the result of virus

induced myocarditis or myopericarditis, which are nonlife-threatening cardiac inflammatory conditions. Rizvi

developed a plan for the decedent’s treatment, pursuant

to which she would be tested for COVID-19, remain in

isolation pending receipt of the test result, and undergo

an echocardiogram. At approximately 3:27 p.m., Rizvi

recommended that admission to the catheterization lab

be deferred until COVID-19 could be ruled out.

Hospital staff administered a COVID-19 test to the

decedent at approximately 5:18 p.m. on March 21, 2020.

It was sent to a state laboratory for processing, which,

at that time, took several days.

Over the next two days, March 22 and 23, 2020, Ferraro-Borgida, Duncan, and Farrell, also cardiologists

working at the hospital, became involved in the care

of the decedent. Each agreed with Rizvi’s recommendation to defer the decedent’s transfer to the catheterization lab pending receipt of her COVID-19 test because

her history and current presentation indicated to them

that she most likely was suffering from COVID-19

related myocarditis. Ferraro-Borgida noted in the decedent’s chart that she was not suffering from chest pain

but from a sore throat and headache. Ferraro-Borgida

also noted that the decedent would need a ‘‘full [echocardiogram] for evaluation of valves and cardiac [catheterization] to assess coronary anatomy.’’ Duncan later

noted that the decedent ‘‘had absolutely no chest symptoms’’ and that her symptoms were ‘‘most consistent

with myocarditis.’’ He further noted that they were

‘‘[w]aiting for [COVID-19] testing to become negative

but [did] suggest cardiac catheterization before hospital

discharge.’’ Farrell, the last to examine the decedent

on March 23, 2020, noted that she was ‘‘asymptomatic

with no signs of heart failure or ongoing chest pain.’’

He also noted that, ‘‘[o]nce [the decedent has been]

ruled out for [a COVID-19] infection she will undergo

a right and left heart [catheterization]. [The decedent]

is frustrated by the delay but understands the rationale

for infectious disease evaluation . . . .’’
On March 24, at 7:40 p.m., the decedent’s COVID-19

test result was reported as negative. The next morning,

on March 25, 2020, at 6:06 a.m., Farrell ordered that the

decedent undergo a coronary angiogram in the catheterization lab later that day. The purpose of the angiogram

was not to treat an acute STEMI but to evaluate the

decedent’s coronary anatomy. Before the angiogram

could be administered, however, the decedent suffered

‘‘a sudden [pulseless electrical activity] arrest’’ and died.

The decedent’s death certification listed the cause of

death as a myocardial infarction.

The plaintiff thereafter brought this wrongful death

action against the defendants pursuant to General Statutes § 52-555. In an eight count complaint, the plaintiff

alleged that the individual defendants, and, through

them, the hospital, were negligent and grossly negligent

in their treatment of the decedent.9 The defendants filed

three separate motions to dismiss: one addressing the

counts against Rizvi, one addressing the counts against

Ferraro-Borgida and Duncan, and one addressing the

counts against Farrell. All of the defendants claimed

that they were immune from suit under Executive Order

No. 7V because their treatment of the decedent was

undertaken in good faith and in support of the state’s

COVID-19 response and that they were immune under

the PREP Act because the treatment was related to a

COVID-19 countermeasure.10 See footnotes 1 and 2 of

this opinion. The defendants offered, in support of their

motions, affidavits from each of the defendant physicians and from Adam Steinberg, the hospital’s vice president for medical affairs, as well as the decedent’s

hospital records. The plaintiff submitted an affidavit

from her medical expert, who attested that the defendant physicians had misdiagnosed the decedent’s condition and that the standard, emergency treatment for a

STEMI, the condition actually suffered by the decedent,

had not changed, regardless of a patient’s COVID-19

status.

After the motions to dismiss were filed, the trial court

requested additional briefing on the issue of whether

receipt of the decedent’s negative COVID-19 test result

terminated any immunity conferred by Executive Order

No. 7V and the PREP Act. The defendants responded

that immunity was not terminated because the treatment decisions made by Farrell after receipt of the

negative test result were dictated by the treatment plan

put in place when the decedent was admitted to the

hospital with a suspected COVID-19 infection. They submitted an additional affidavit by Farrell in support of

this claim.

The trial court issued a memorandum of decision,

concluding that receipt of the negative COVID-19 test

result marked the dividing line between immunity and

potential liability. The court reasoned that, ‘‘before [the

decedent’s] COVID-19 test came back negative, the
defendants were providing health care services in support of the state’s response to the pandemic because,

at that time, the defendants had a good faith belief

that they may be treating an actual COVID-19 patient.’’

Accordingly, the court concluded that the defendants

were immune from suit and liability under Executive

Order No. 7V for their allegedly negligent acts or omissions before receipt of the negative test result. The

court further concluded that, because ‘‘the defendants

[could] no longer claim [that] they were ‘providing

health care services in support of the [s]tate’s COVID19 response’ ’’ after receipt of the negative test result,

they were not entitled to immunity under the executive

order from suit and liability for negligent acts or omissions occurring thereafter.

The trial court reached similar conclusions with

respect to immunity under the PREP Act, which, unlike

Executive Order No. 7V, provides immunity for gross

negligence. The court determined that the PREP Act

conferred immunity on the defendants for all acts and

omissions, negligent or grossly negligent, occurring

before receipt of the negative COVID-19 test result

‘‘because such claims plainly are related to, and arise

out of, a COVID-19 diagnostic countermeasure, specifically, [the decedent’s] COVID-19 test.’’ The court dismissed the claims of gross negligence arising from

conduct occurring before the receipt of the test result.

As with Executive Order No. 7V, the court concluded

that PREP Act immunity did not extend to acts or omissions occurring after receipt of the test result because,

‘‘by that time, [the decedent’s] COVID-19 diagnostic

tests were at an end.’’

To summarize, the trial court granted the defendants’

motions to dismiss with respect to the claims directed

at the defendants’ acts or omissions occurring before

7:40 p.m. on March 24, 2020. The court denied the

motions with respect to the claims directed at the defendants’ acts or omissions occurring after that time.

The defendants filed motions for clarification, in

which they pointed out that there was no dispute that

Rizvi, Ferraro-Borgida, and Duncan had not been

involved in the decedent’s treatment after receipt of

the negative COVID-19 test result and, therefore, that

the claims against those defendants must or should

have been dismissed in their entirety. The plaintiff consented to the motions. The trial court granted the

motions and rendered judgment dismissing all of the

claims against Rizvi, Ferraro-Borgida, and Duncan, leaving Farrell as the only remaining individual defendant

based on his role in the decedent’s care after 7:40 p.m.

on March 24, 2020.

The plaintiff appealed insofar as the trial court dismissed the counts pertaining to the defendants’ acts

or omissions before receipt of the decedent’s negative

COVID-19 test result. Farrell and the hospital separately
appealed from the trial court’s decision denying in part

their motions to dismiss with respect to acts or omissions after receipt of the negative COVID-19 test result.11

Resolution of each of these appeals turns on the question of whether the trial court properly construed and

applied the immunity provisions of Executive Order

No. 7V and the PREP Act.

Our review of the trial court’s decision is guided by

well established principles. We previously have recognized that ‘‘[t]rial courts addressing motions to dismiss

for lack of subject matter jurisdiction pursuant to [Practice Book § 10-30 (a) (1)] may encounter different situations, depending on the status of the record in the case.

. . . [I]f [as here] the complaint is supplemented by

undisputed facts established by affidavits submitted in

support of the motion to dismiss . . . the trial court,

in determining the jurisdictional issue, may consider

these supplementary undisputed facts and need not

conclusively presume the validity of the allegations of

the complaint. . . . Rather, those allegations are tempered by the light shed on them by the [supplementary

undisputed facts]. . . . If affidavits [or] other evidence

submitted in support of a defendant’s motion to dismiss

conclusively establish[es] that jurisdiction is lacking,

and the plaintiff fails to undermine this conclusion with

counteraffidavits; see Practice Book § [10-30 (a)]; or

other evidence, the trial court may dismiss the action

without further proceedings.’’ (Citation omitted; internal quotation marks omitted.) Carpenter v. Daar, supra,

346 Conn. 98 n.12. Conversely, if the allegations of the

complaint and the supplementary facts produced by

the defendant do not conclusively establish that jurisdiction is lacking, the court must deny the motion to

dismiss. Unless the resolution of the motion to dismiss

has required the trial court to resolve factual disputes,

our review of a trial court’s ruling on a motion to dismiss

is plenary. See id., 97, 98 n.12.

I

EXECUTIVE ORDER NO. 7V

We begin with the challenges to the trial court’s decision involving the claims of immunity under Executive

Order No. 7V. Our first task is to determine the scope

of the immunity conferred by the executive order and

then to apply that interpretation to the allegations in

the complaint and the supplementary undisputed facts.

We have not previously addressed the principles that

govern our interpretation of executive orders. The

Appellate Court has held that ‘‘[a]pplying the principles

of statutory interpretation to [an] executive order is

[appropriate] because [such an] order has the full force

and effect of law.’’ Prime Management, LLC v. Arthur,

217 Conn. App. 737, 750, 290 A.3d 401 (2023);12 see

General Statutes § 28-9 (b) (1) (any order issued by

governor pursuant to § 28-9 (b) ‘‘shall have the full force
and effect of law upon the filing of the full text of such

order in the office of the Secretary of the State’’). Other

jurisdictions have applied the same reasoning. See Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir. 2005) (‘‘[a]s is

true of interpretation of statutes, the interpretation of

an [e]xecutive [o]rder begins with its text’’); United

States v. Abu Marzook, 412 F. Supp. 2d 913, 922 (N.D.

Ill. 2006) (‘‘[t]he [c]ourt interprets [e]xecutive [o]rders

in the same manner that it interprets statutes’’); Coble

v. Ventura County Health Care Agency, 73 Cal. App.

5th 417, 425, 288 Cal. Rptr. 3d 431 (2021) (‘‘[t]he construction of an executive order presents an issue akin

to an issue of statutory interpretation—one that presumably presents a question of law for our independent

review on appeal’’ (internal quotation marks omitted));

In re Murack, 957 N.W.2d 124, 128 (Minn. App. 2021)

(applying principles of statutory interpretation to emergency executive orders); SRI Eleven 1407 Broadway

Operator, LLC v. Mega Wear, Inc., 71 Misc. 3d 779, 795,

144 N.Y.S.3d 289 (2021) (‘‘[a]s is true of interpretation

of statutes, the interpretation of an [e]xecutive [o]rder

begins with its text, which must be construed consistently with the [o]rder’s object and policy’’ (internal

quotation marks omitted)). We find the reasoning of

these cases persuasive and, therefore, apply the usual

principles of statutory interpretation to our construction of Executive Order No. 7V.

Section 6 of Executive Order No. 7V provides in relevant part: ‘‘Notwithstanding any provision of the Connecticut General Statutes or any other state law,

including the common law, or any associated regulations, rules, policies, or procedures, any health care

professional or health care facility shall be immune

from suit for civil liability for any injury or death alleged

to have been sustained because of the individual’s or

health care facility’s acts or omissions undertaken in

good faith while providing health care services in support of the [s]tate’s COVID-19 response, including but

not limited to acts or omissions undertaken because

of a lack of resources, attributable to the COVID-19

pandemic, that renders the health care professional or

health care facility unable to provide the level or manner

of care that otherwise would have been required in the

absence of the COVID-19 pandemic and which resulted

in the damages at issue . . . .’’ This immunity does not

extend to, among other things, ‘‘acts or omissions that

constitute . . . gross negligence . . . .’’ Executive

Order No. 7V, § 6 (April 7, 2020). The immunity was

deemed applicable to acts or omissions occurring at

any time during the public health and civil preparedness

emergency declared on March 10, 2020.

The sentence conferring immunity contains two basic

parts, connected by the phrase ‘‘including but not limited to . . . .’’ Id. Because the defendants in this case

do not claim immunity under the second part of this

provision, relating to a lack of resources, we focus
our attention primarily on the immunity conferred to

covered individuals and facilities for ‘‘acts or omissions

undertaken in good faith while providing health care

services in support of the [s]tate’s COVID-19 response

. . . .’’13 Id. Moreover, because the plaintiff does not

contest the element of good faith, our specific focus is

on the requirement that the injury or death be sustained

because of the individual’s or health care facility’s acts

or omissions ‘‘while providing health care services in

support of the [s]tate’s COVID-19 response . . . .’’ Id.

Both sides advance arguments as to why this phrase

does or does not apply to the particular facts in the

present case, but neither party has clearly articulated

a general meaning that they ascribe to the phrase. We

therefore consider the broad contours of this phrase

before considering the parties’ context specific arguments.

The text is reasonably susceptible to a range of reasonable interpretations. The narrowest interpretation

would understand the phrase ‘‘while providing health care

services in support of the [s]tate’s COVID-19 response’’

to mean that a health care provider is immune from

suit and liability only for acts or omissions undertaken

while treating the injured party for COVID-19. Under the

broadest interpretation, the phrase reasonably could

mean that a health care provider is immune from suit

and liability for any acts or omissions undertaken during

the period in which the health care provider is providing

services in support of the state’s COVID-19 response

(i.e., while those services coincide with the effective

period of the declared public health emergency), regardless of whether the acts or omissions are connected to

those services. Between these two extremes, the phrase

also reasonably could mean that immunity applies when

the acts or omissions causing the injury were connected

to the health care provider’s services in support of the

state’s COVID-19 response, even if the health care provider was not treating the injured party for COVID-19.

Because the immunity provision of Executive Order

No. 7V is ambiguous, we look for interpretive guidance

to the circumstances surrounding its promulgation and

to the public policy that it was designed to implement.

Cf. State v. Pond, 315 Conn. 451, 467, 108 A.3d 1083

(2015) (‘‘[w]hen a statute is not plain and unambiguous,

we . . . look for interpretive guidance to the . . . circumstances surrounding its enactment . . . [and] to

the legislative policy it was designed to implement’’

(internal quotation marks omitted)).

The circumstances existing at the beginning of the

worldwide COVID-19 pandemic are well known. Although

it was clear by early 2020 that COVID-19 was a dangerous and highly contagious disease, the mechanisms of

the disease, its symptomatology, the methods by which

the virus spread, and effective strategies for treatment,

control, and prevention were all poorly understood.
See Fraihat v. United States Immigration & Customs

Enforcement, 16 F.4th 613, 619 (9th Cir. 2021) (observing that steps taken by United States Immigration and

Customs Enforcement at outset of pandemic were

taken ‘‘in the face of scientific uncertainty and a constantly developing understanding of COVID-19’’);

United States v. Olsen, 622 F. Supp. 3d 856, 862 (C.D.

Cal. 2022) (observing that ‘‘COVID-19 [thrust] the world

into uncertainty and fear’’); Democratic National Committee v. Bostelmann, 488 F. Supp. 3d 776, 787 (W.D.

Wis. 2020) (observing that, as of September, 2020,

‘‘[m]uch [was] still unknown about the [COVID-19] virus

and the . . . illness that it causes,’’ and that, as of February and March, 2020, ‘‘even greater uncertainty surrounded the extent, seriousness and nature of COVID19’’). At this time and at all times relevant to the present

case, no COVID-19 vaccine was yet available; see Dixon

v. De Blasio, 566 F. Supp. 3d 171, 177 and nn. 4–7

(E.D.N.Y. 2021), vacated on other grounds, United

States Court of Appeals, Docket No. 21-2666, 2022 WL

961191 (2d Cir. March 28, 2022); Lynch v. State, Superior

Court, judicial district of Hartford, Docket No. HHDCV-16-6067438 (September 11, 2020) (70 Conn. L. Rptr.

221, 221); and the most accurate form of testing for the

virus—the type ordered in the present case—typically

took several days to obtain results. See T. Li, ‘‘Privacy

in Pandemic: Law, Technology, and Public Health in

the COVID-19 Crisis,’’ 52 Loy. U. Chi. L.J. 767, 812 and

nn. 200–201 (2021).

It was widely believed in March, 2020, that medical

providers and hospitals throughout the United States

were about to be overwhelmed with COVID-19 patients.

See Lipsey v. Walmart, Inc., Docket No. 19 C 7681, 2020

WL 1322850, *3 (N.D. Ill. March 20, 2020) (observing

that ‘‘[the] public record [was] replete with references

to the impact that community spread of COVID-19 could

have, and [was] already having, on medical care providers, doctors, hospitals and staff’’); see id., citing C.

Griggs, ‘‘A New York Doctor’s Coronavirus Warning:

The Sky Is Falling,’’ N.Y. Times, March 19, 2020, available at https://www.nytimes.com/2020/03/19/opinion/

coronavirus-doctor-new-york.html (last visited August

7, 2023) (‘‘Today, at the hospital where I work, one of

the largest in New York City, [COVID-19] cases continue

to climb, and there’s movement to redeploy as many

health care workers as possible to the [emergency

rooms], new ‘fever clinics’ and [intensive care units].

It’s becoming an all-healthy-hands-on-deck scenario.’’),

and L. Schenker & D. Heinzmann, ‘‘How Illinois Hospitals

Are Preparing for a Flood of COVID-19 Patients,’’ Chi.

Trib., March 19, 2020, available at https://www.chicagotribune.com/coronavirus/ct-coronavirus-covid-hospitalsillinois-chicago-20200318-n5vnqva3sng2jnxzgmmljkyybmstory.html (last visited August 7, 2023) (‘‘[m]any [hospitals]

have started reassigning medical staff, canceling elective surgeries to save resources, moving testing for
COVID-19 outside typical patient areas and drawing up

plans for how to house large numbers of patients’’).14

Confronted with these circumstances, on March 10,

2020, Governor Lamont declared a public health emergency and a civil preparedness emergency throughout

the state pursuant to General Statutes §§ 19a-131a and

28-9.15 See Casey v. Lamont, supra, 338 Conn. 483. He

thereafter issued a series of executive orders, including

Executive Orders Nos. 7U and 7V, both of which addressed

the health care crisis.16 Governor Lamont formally declared

that it was ‘‘necessary to supplement Connecticut’s

health care workforce and the capacity of health care

facilities to deliver [lifesaving] care by requesting the

assistances of health care professionals who [had] not

previously maintained liability coverage; facilitating the

deployment of volunteer and out-of-state professionals;

and calling [on health care] professionals to perform

acts that they would not perform in the ordinary course

of business . . . .’’ Executive Order No. 7U (April 5,

2020). Governor Lamont further determined that, ‘‘in

order to encourage maximum participation in efforts

to expeditiously expand Connecticut’s health care

workforce and facilities capacity, there exists a compelling state interest in affording such professionals and

facilities protection against liability for good faith

actions taken in the course of their significant efforts

to assist in the state’s response to the current public

health and civil preparedness emergency . . . .’’ Id.

The evident purpose of the immunity provision of Executive Order No. 7V was to facilitate the implementation

of these policies by assuring the relevant health care

professionals and facilities that, in light of the uncertainties surrounding the diagnosis, treatment, and prevention of COVID-19,17 and in view of the compelling need

to keep health care facilities open and operating, they

would not be held liable for such acts and omissions,

as long as they acted in good faith and in support of

the state’s COVID-19 response.

With this background in mind, we first consider the

narrowest interpretation of Executive Order No. 7V,

under which immunity is available only when the medical practitioner was treating the injured party for

COVID-19. We reject this interpretation because it

would fall far short of fulfilling the public policy underlying the order. It is not difficult to imagine ‘‘good faith

actions taken in the course of [health care workers’]

significant efforts to assist in the state’s response’’ to

the COVID-19 pandemic that could result in the injury

or death of persons who were not being treated for

COVID-19. Id. For example, if a patient sought treatment

in a hospital’s emergency department for a broken leg

and contracted a COVID-19 infection from another

patient who was being treated for COVID-19, we can

perceive no reason why Governor Lamont would have

wanted the hospital—which was making a good faith

effort to assist in the state’s COVID-19 response by
treating COVID-19 patients—to be held liable merely

because it was not treating the patient with the broken

leg for COVID-19. The purpose of Executive Order No.

7V was to allow health care facilities to provide such

services without the fear of being subjected to lawsuits.

At the other extreme, we also find unpersuasive an

expansive interpretation of Executive Order No. 7V that

provides immunity for all negligent acts or omissions

undertaken by health care professionals and facilities

during the period in which they were providing services

in support of the state’s COVID-19 response, regardless

of the connection between that act or omission and the

response to COVID-19. Such immunity would extend

to circumstances in which, for example, a patient undergoing a surgical procedure by a fully staffed, equipped,

and trained surgical team was injured as a result of

the surgeon’s negligence. We see no evidence that the

governor intended to provide immunity in such circumstances merely because the hospital also was providing

services in support of the state’s COVID-19 response

that had no material effect on the patient’s treatment.

Such a broad interpretation would raise other problems, as well. It would run afoul of the principle that

‘‘statutes in derogation of the common law are [to be]

strictly construed . . . .’’18 (Internal quotation marks

omitted.) Chadha v. Charlotte Hungerford Hospital,

272 Conn. 776, 789, 865 A.2d 1163 (2005). An immunity

that sweeps so broadly also may be of questionable

constitutionality on various grounds. For example,

when this court addressed the constitutional limits of

the authority granted to the governor under § 28-9 (b)

in Casey, we recognized that the governor’s statutory

authority under § 28-9 (b) (7) to ‘‘take such other steps

as are reasonably necessary in the light of [a declared

public health] emergency to protect the health, safety

and welfare of the people of the state’’ is constitutional

only to the extent that it authorizes the governor to

take steps that are necessary to protect the health,

safety, and welfare of the people from the dangers

‘‘implicated by this particular serious disaster. The governor would not, for example, be able to issue an executive order forbidding restaurants from selling unhealthy

foods during the COVID-19 pandemic.’’ (Emphasis omitted.)

Casey v. Lamont, supra, 338 Conn. 508. We explained

that, if § 28-9 (b) (7) were interpreted as authorizing

the governor to issue executive orders that are not

necessary for that narrow purpose, the statute would be

an unconstitutional delegation of legislative authority

because there would be no limiting principle to guide

the exercise of that authority.19 See id., 504–505. The

broadest interpretation of Executive Order No. 7V would

thus be of questionable constitutionality because, among

other reasons, it would not be linked to the specific

dangers posed by the COVID-19 pandemic as identified

in Executive Order Nos. 7U and 7V, namely, the danger

that health care providers and facilities would be unable
to meet the expanded demand for services due to liability concerns arising from the use of health care professionals who are not insured or do not have insurance

coverage in this state.

The interpretation between these two extremes minimizes the foregoing concerns.20 An immunity that applies

when the acts or omissions that caused the injury are

connected to the health care provider’s services in support of the state’s COVID-19 response, even if the defendant was not treating the injured party for COVID-19,

maintains a close fit between the grant of public health

emergency authority in § 28-9, the terms of the executive order, and the express policies underlying that

order.

We find additional textual support for this interpretation of the first part of the immunity provision when

we turn our attention to the second part of that provision. The provision states that the scope of the immunity

includes, but is not limited to, ‘‘acts or omissions undertaken because of a lack of resources, attributable to

the COVID-19 pandemic, that renders the health care

professional or heath care facility unable to provide the

level or manner of care that otherwise would have been

required in the absence of the COVID-19 pandemic and

which resulted in the damages at issue . . . .’’ Executive Order No. 7V, § 6 (April 7, 2020). This language

plainly requires the act or omission to have a connection

to the COVID-19 pandemic for immunity to apply. Construing the first part of the immunity provision to

require a similar nexus between the alleged negligence

and the COVID-19 pandemic thus creates a harmonious

and consistent whole. See, e.g., Harpaz v. Laidlaw

Transit, Inc., 286 Conn. 102, 130, 942 A.2d 396 (2008)

(‘‘[w]e are obligated to search for a construction of the

statute that makes a harmonious whole of its constituent parts’’ (internal quotation marks omitted)).

Our interpretation also avoids the violation of a basic

canon of statutory interpretation that arises from a

broad interpretation of the ‘‘while providing health care

services’’ clause as conferring immunity for any acts or

omissions undertaken during the period in which the

health care provider is providing services in support of

the state’s COVID-19 response (i.e., the duration of the

public health emergency). If all a defendant has to do

to establish immunity under that clause is prove that the

pertinent act or omission occurred during the relevant

period when it was providing COVID-19 support services, and is not required to establish that the act or

omission was connected to the provision of those services, then the specific circumstances that fall within

the ‘‘including but not limited to’’ clause would be rendered entirely superfluous. See, e.g., American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 203,

937 A.2d 1184 (2008) (‘‘[i]nterpreting a statute to render

some of its language superfluous violates cardinal prin-
ciples of statutory interpretation’’). The nature of or

reason for the act or omission (a lack of resources or

any other relevant reason) would not matter, only when

it occurred.

We therefore conclude, subject to the caveat that we

articulate in part I C of this opinion, that § 6 of Executive

Order No. 7V confers immunity from suit and liability

only for acts and omissions that are undertaken in good

faith and in connection with the provision of such services. Health care services in support of the state’s

COVID-19 response necessarily would include those

undertaken for the prevention, diagnosis, or treatment

of COVID-19. The language of the immunity provision

and the policies the immunity is expressly intended to

advance require a defendant to demonstrate a nexus

between the alleged negligence and the services rendered in support of the state’s COVID-19 response.

Mindful of these broad contours of the part of the immunity provision at issue, we now turn to the parties’

arguments as to its application to the present circumstances.

A

The plaintiff contends in her appeal that the trial

court should not have found against her as to the events

prior to receipt of the negative COVID-19 test result because COVID-19 is irrelevant to the negligence alleged

in her complaint, which rests on her claim that the

defendants caused the decedent’s death as a result of

their misdiagnoses of her medical condition and their

corresponding failure to render proper treatment. The

plaintiff asserts that, ‘‘but for the misdiagnosis, [the

decedent’s] COVID-19 status would have been considered irrelevant, and the fact that she was experiencing

a STEMI would have compelled the defendants to get

her into the [catheterization] lab quickly.’’ The plaintiff

accepts that this misdiagnosis could have been a product of the defendants’ subjective, good faith belief that

the decedent likely was suffering from a COVID-19

induced heart condition. She contends, however, that

the defendants would be entitled to immunity only if

they reasonably believed that the decedent’s COVID19 status was relevant to her diagnosis and treatment.

The plaintiff argues on the basis of this premise that

the defendants cannot establish that the acts or omissions at issue were undertaken ‘‘while providing health

care services in support of the [s]tate’s COVID-19

response’’ for two related reasons: (1) under the hospital’s COVID-19 protocol, the determination of whether

a patient was exhibiting physical symptoms dictating

the need for emergency catheterization was made without regard to the patient’s COVID-19 status, and (2) in

the absence of undisputed evidence proving otherwise,

the court was bound to assume the truth of the plaintiff’s

allegations that the defendants misdiagnosed the decedent with myocarditis or myopericarditis rather than
a STEMI, and, thus, the delay in her transfer to the

catheterization lab for an emergency procedure was

not connected to the provision of health services in

support of the state’s COVID-19 response.21 We disagree.

The plaintiff has offered no evidence to call into dispute the defendants’ affidavits attesting that the decedent’s COVID-19 status was a material factor in their

diagnosis of the decedent and their decisions on her

treatment and care. The defendants recommended a

COVID-19 test to confirm or cast doubt on that diagnosis. Although the defendants’ immunity does not hinge

on the existence of the hospital’s COVID-19 protocol,

the fact that they deferred the decedent’s admission

to the catheterization lab in reliance on that protocol

underscores the fact that their acts or omissions, negligent or not, occurred while providing health care services in support of the state’s COVID-19 response. The

aim of that protocol was to protect patients from exposure to the potentially deadly virus and to conserve

scarce personal protective equipment necessary to protect desperately needed staff. The diagnosis and treatment of a patient with health care complications that

the health care provider believed in good faith to be

caused by COVID-19, as well as the prevention of the

spread of COVID-19 to other patients, clearly constitute

acts or omissions connected to the provision of health

care services in support of the state’s COVID-19 response.

The plaintiff’s argument that the immunity provision

requires an objectively reasonable belief that the defendants’ provision of services is in support of the state’s

COVID-19 response suffers from three principal flaws,

two legal and one factual in nature. First, although the

provision expressly imposes a good faith requirement,

it says nothing about the objective reasonableness of

that belief. Cf. General Statutes § 33-756 (a) (‘‘[e]ach

member of the board of directors, when discharging

the duties of a director, shall act: (1) [i]n good faith;

and (2) in a manner the director reasonably believes

to be in the best interests of the corporation’’). Second,

the defendants’ argument collapses the distinction

between immunity and liability by conflating two very

different issues, namely, (1) whether the defendants are

immune for their allegedly negligent acts and omissions,

and (2) whether the defendants were in fact negligent.

Under the plaintiff’s theory, the immunity would never

be necessary because a court could not determine that

the defendants are entitled to immunity unless it also

finds that there is no negligence (i.e., when the act or

omission at issue was found to be objectively reasonable and, thus, no liability would attach). Third, and

most important, the plaintiff’s position fails to appreciate that, in the present case, the alleged misdiagnosis

and the decedent’s COVID-19 status were inextricably

intertwined—the defendants submitted undisputed evidence that they believed that the decedent’s symptoms
were caused by COVID-19, and their treatment plan

(including the delay in transferring her to the catheterization lab) was informed by that provisional diagnosis.

The plaintiff contends that it is necessary to require

proof that the defendants’ misdiagnosis was objectively

reasonable because, otherwise, any defendant could

avoid liability in any case simply by asserting their subjective, but unreasonable, belief that a patient had

COVID-19. This concern carries little weight. It ignores

the requirement of good faith, which may be disputed

in some cases (but is not in the present case). It also

overlooks the fact that there will be situations in which

a patient’s COVID-19 status will be irrelevant to the

care and treatment at issue. There will, in addition, be

cases in which a patient alleges that the defendants’

acts or omissions constitute gross negligence or wilful

misconduct, both of which are outside the scope of the

immunity afforded under the executive order.

Mindful of the caveat we articulate in part I C of

this opinion, we conclude that the trial court properly

dismissed the counts alleging negligence for acts or

omissions occurring before receipt of the decedent’s

negative COVID-19 test result (i.e., counts I, II, and III

of the complaint).

B

Farrell and the hospital claim in their appeals that

the trial court incorrectly determined that the immunity

conferred by Executive Order No. 7V does not apply

to Farrell’s acts and omissions after the receipt of the

decedent’s negative COVID-19 test result. They contend

that the treatment that Farrell provided after that time

was dictated entirely by the treatment that had been

prescribed when the decedent was initially admitted to

the hospital, and nothing that they could have done

after receipt of the test result could have prevented

the decedent’s death. More particularly, the hospital

contends that Governor Lamont did not ‘‘intend for

frontline health care professionals to be sued for adhering to a plan dictated by COVID-19 and put in place

before they ever saw the patient. Such results would

be inconsistent with Governor Lamont’s purposes to

encourage providers to take whatever action [was]

needed to combat the pandemic and to expand the

health care workforce because it would discourage participation rather than encourage it and encourage

wasteful, defensive medicine.’’ Farrell likewise contends that ‘‘it would be incongruous to interpret the

scope of the executive order as being limited solely to

the care and treatment of patients [who] test positive

for COVID-19. . . . If the governor meant to limit the

scope of immunity to the treatment of COVID-19 positive patients only, he could have done so but chose not

to as a policy matter.’’ We disagree.

Under the circumstances of this case, receipt of the
test result broke any meaningful connection between

Farrell’s treatment of the decedent and his provision

of health care services in support of the state’s COVID19 response. At that point, Farrell simply was providing

treatment to a patient who, three days earlier, had

received test results possibly indicating a STEMI.

Although the clinical diagnosis of a possible COVID-19

infection had caused the delay in diagnosing and treating the decedent’s true condition, COVID-19 had no

bearing on the nature of the health care services that

were rendered after 7:40 p.m. on March 24, 2020. Therefore, immunity was no longer available under the terms

of Executive Order No. 7V.

Farrell and the hospital dispute this conclusion,

arguing that COVID-19 did bear on the nature of the

health care services that Farrell provided after receipt

of the negative COVID-19 test. They argue that Farrell’s

treatment of the decedent was entirely dictated by the

treatment decisions that were made when the decedent

was admitted to the hospital with a clinical diagnosis

of possible COVID-19. To support this claim, they rely

on Farrell’s affidavit, in which he stated that his order

at 6:06 a.m. on March 25, 2020, directing that the decedent be admitted to the catheterization lab, ‘‘was not a

new treatment decision and plan, but rather was [the]

completion of the treatment plan established on March

21, 2020, dictated as a result of COVID-19 concerns

of myocarditis simulating a STEMI presentation and

concerns of COVID-19 exposure and spread risk,’’ and

that, ‘‘[a]s of the time of [his] care and treatment, the

initial event, whatever it was, was a completed event.’’

Farrell further contends that, by the time the defendants

received the negative test result, there was no treatment

that they reasonably could have been expected to provide that would have reversed the completed cardiac

event that the decedent had suffered on March 21, 2020,

or prevented her death.

Neither of these arguments is persuasive. First, the

decisions that were made concerning the decedent’s treatment once COVID-19 was ruled out were not ‘‘dictated

by’’ the clinical COVID-19 diagnosis but, rather, were

the result of learning that the decedent did not have

COVID-19 and the delay driven by suspicion of a COVID19 induced condition having come to an end. COVID19 had no apparent bearing on the treatment of the

decedent’s heart condition as of 7:40 p.m. on March 24,

2020. Second, with respect to the contention that the

defendants are immune from suit and liability for Farrell’s acts and omissions occurring after the receipt of

the negative test result because there was nothing that

he reasonably could have been expected to do at that

point to prevent the decedent’s death, the claim conflates immunity with liability by arguing, in effect, that

they are immune because Farrell was not negligent.22

As we previously explained in part I A of this opinion,

the immunity conferred by Executive Order No. 7V does
not turn on whether the defendants’ acts or omissions

were negligent but on whether their acts or omissions

had a connection to health care services provided in

support of the state’s COVID-19 response. There is no

such connection with respect to events after receipt of

the negative COVID-19 test.

Farrell contends that our conclusion would lead to an

absurd result because he provided care for the decedent

both before and after receipt of the test, and it makes

no sense to bifurcate the immunity analysis under these

circumstances. He points out that, ‘‘[a]lthough the [trial]

court found that . . . Farrell had immunity for following the established plan of care put in place [when] he

became involved in the case, it also [found] that he did

not have immunity for following that same established

plan of care after receipt of the negative COVID-19 test.’’

This contention overlooks that the facts changed upon

receipt of the test result. Once COVID-19 was ruled

out as a cause of the decedent’s heart condition, the

treatment of her heart condition going forward was

not being provided in support of the state’s COVID-19

response and, therefore, was not within the scope of

the immunity conferred by Executive Order No. 7V.

Moreover, contrary to the premise of Farrell’s contention, the plaintiff is seeking to hold the defendants

liable for the acts that they actually undertook or failed

to undertake in treating the decedent, not for devising

a treatment plan for what would happen if the decedent

received a negative COVID-19 test result. Regardless of

who initially devised the treatment plan in the event

that the result came back negative, Farrell was the

physician who provided the treatment, and the plaintiff

seeks to hold him liable for his failure to provide the

treatment allegedly required by the applicable standard

of care.23

Taking a different tack, the hospital argues that the

defendants are entitled to immunity because the hospital’s COVID-19 protocols hampered the defendants’ ability to provide treatment to the decedent after receipt

of her negative COVID-19 test result. The hospital relies

on Steinberg’s statements in his affidavit that, ‘‘[d]uring

the [t]reatment [p]eriod, [the hospital] was engaged in

various steps to conserve personal protective equipment . . . including, but not limited to, minimizing inperson contact between patients and hospital personnel

and limiting the number of hospital personnel in contact

with patients suspected of having COVID-19,’’ and that

the hospital’s COVID-19 protocols required it to ‘‘avoid

administration of echocardiograms to patients who did

not demonstrate an absolute clinical need . . . .’’ There

is no support in the record establishing that the factors

identified by Steinberg played any role in hampering

the defendants’ treatment of the decedent after receipt

of the negative COVID-19 test result. None of the affidavits includes any such statement of fact.24
For the foregoing reasons, we conclude that the trial

court correctly determined that Farrell and, through

him, the hospital are not immune from suit and liability

under Executive Order No. 7V for the plaintiff’s claims

related to the health care services that they provided

to the decedent after receipt of her negative COVID-19

test result. It therefore properly denied Farrell’s motion

to dismiss on that ground.

C

We end our discussion regarding immunity under

Executive Order No. 7V with an important caveat. Our

role in the present appeal is limited to interpreting and

applying Executive Order No. 7V to the undisputed facts.

Although the parties have cited constitutional considerations in connection with their arguments as to the

scope of immunity afforded under Executive Order No.

7V, the plaintiff has not challenged on appeal the governor’s statutory or constitutional authority to confer

immunity from liability for medical malpractice in the

first place.25 Cf. Casey v. Lamont, supra, 338 Conn. 483

(holding that § 28-9 provided authority for governor

to issue certain executive orders and that statute so

construed passed constitutional muster). Given the

common-law nature of an action for medical malpractice; see, e.g., Greenwald v. Van Handel, 311 Conn. 370,

383, 88 A.3d 467 (2014); Golden v. Johnson Memorial

Hospital, Inc., 66 Conn. App. 518, 534–36, 785 A.2d 234,

cert. denied, 259 Conn. 902, 789 A.2d 990 (2001); it

remains an open question whether § 28-9 (b) (1), which

authorizes the governor to ‘‘modify or suspend’’ a ‘‘statute, regulation or requirement,’’ permits the issuance

of an executive order modifying or suspending the

‘‘common law,’’ as Executive Order No. 7V purports to

do. See footnote 15 of this opinion (setting forth relevant text of § 28-9 (b)). This omission naturally raises

a colorable question as to whether the legislature in

fact delegated such authority to the governor, and, if

not, whether any other source of authority supported

the order as to this matter. See F. Perry & M. Weismann,

‘‘Rationing Healthcare During a Pandemic: Shielding

Healthcare Providers from Tort Liability in Uncharted

Legal Territory,’’ 30 U. Miami Bus. L. Rev. 142, 174–79

(2021) (discussing whether gubernatorial executive

orders providing immunity shields raise enforceability

issues, including whether state governor is legally

authorized to issue executive order). Mindful that the

resolution of these issues not only would impact liability

arising from the COVID-19 pandemic but also could

provide useful guidance for responses to potential

future public health emergencies, we solicited supplemental briefs on whether this court could and should

address these important matters.26 The parties and the

responding amici curiae naturally took different views

on this matter.

Although these questions are of a sufficiently ‘‘public
character’’ to warrant this court initiating review; (emphasis

omitted) Blumberg Associates Worldwide, Inc. v.

Brown & Brown of Connecticut, Inc., 311 Conn. 123,

158, 84 A.3d 840 (2014); we have determined that their

resolution should await more appropriate circumstances. It is evident that the limitations of supplemental

briefing in this case do not afford a sufficiently robust

platform to address the legal issues raised sua sponte

by the court, including, but not limited to, whether

medical malpractice in a wrongful death action should

be characterized as statutory or common law in nature;

see Soto v. Bushmaster Firearms International, LLC,

331 Conn. 53, 104–105, 202 A.3d 262 (explaining that

wrongful death statute does not create new cause of

action and acknowledging derivative nature of wrongful

death action), cert. denied sub nom. Remington Arms

Co., LLC v. Soto, U.S. , 140 S. Ct. 513, 205 L.

Ed. 2d 317 (2019); whether such immunity would violate

the open courts provision of article first, § 10, of the

state constitution; see Lohnes v. Hospital of Saint

Raphael, 132 Conn. App. 68, 80–81, 31 A.3d 810 (2011)

(addressing whether statutory condition for bringing

medical malpractice action violated open courts provision), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012);

see also footnote 25 of this opinion; and whether the

common law could be abrogated through the modification or suspension of statutes, especially when § 6 of

Executive Order No. 7V does not identify any statutes

or indicate that it intends to ‘‘modify’’ or ‘‘suspend’’ any

existing law, as directed in § 28-9 (b) (1). Cf. Executive

Order No. 7V, §§ 2 through 5 (April 7, 2020) (identifying

statutes to be ‘‘modified’’ and specifying nature of modification). We also are mindful of the concern that the

posture of the present case failed to afford a sufficient

opportunity for the development of an evidentiary

record that might be required for this court to properly

adjudicate these issues at this stage. Accordingly, in

our analysis of the issue as presented to us, we have

assumed, without deciding, that the governor was

legally authorized to create and confer the immunity at

issue in the present case, as provided in § 6 of Executive

Order No. 7V, and leave the resolution of that question

to another day.

II

FEDERAL PREP ACT

The question that remains is whether the plaintiff’s

claims that do not come within the scope of Executive

Order No. 7V nonetheless must be dismissed under

the immunity provision of the federal PREP Act. The

specific claims at issue are the count alleging negligence

against Farrell relating to treatment following receipt

of the negative COVID-19 test result, addressed in part

I B of this opinion, and the counts alleging gross negligence as to all the defendants.27 As we will explain, the

scope of the immunity provided by the PREP Act is
different from—and much narrower than—that conferred by Executive Order No. 7V and does not cover

the claims presently under consideration.

‘‘Congress enacted the PREP Act in 2005 [t]o encourage the expeditious development and deployment of

medical countermeasures during a public health emergency by allowing the [United States Secretary of Health

and Human Services (secretary)] to limit legal liability

for losses relating to the administration of medical

countermeasures such as diagnostics, treatments, and

vaccines.’’ (Internal quotation marks omitted.) Cannon

v. Watermark Retirement Communities, Inc., 45 F.4th

137, 139 (D.C. Cir. 2022). ‘‘The immunity is triggered

by a declaration from the [s]ecretary identifying the

threat to public health, the period during which immunity is in effect, and other particulars.’’ Id.

The PREP Act provides in relevant part that ‘‘a covered person shall be immune from suit and liability

under Federal and State law with respect to all claims

for loss caused by, arising out of, relating to, or

resulting from the administration to or the use by an

individual of a covered countermeasure if a declaration

. . . has been issued with respect to such countermeasure.’’28 (Emphasis added.) 42 U.S.C. § 247d-6d (a) (1)

(2018). The immunity conferred by the PREP Act

‘‘applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure, including a causal

relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution,

formulation, packaging, marketing, promotion, sale,

purchase, donation, dispensing, prescribing, administration, licensing, or use of such countermeasure.’’

(Emphasis added.) 42 U.S.C. § 247d-6d (a) (2) (B) (2018).

On March 10, 2020, the secretary issued a declaration

under the PREP Act in response to the COVID-19 pandemic. See Declaration Under the Public Readiness and

Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198 (March

17, 2020) (PREP Act declaration). Although the PREP

Act does not define ‘‘administration of covered countermeasures,’’ the PREP Act declaration defines that term

to include both the ‘‘physical provision of the countermeasures to recipients’’ and ‘‘activities and decisions

directly relating to public and private delivery, distribution and dispensing of the countermeasures to recipients . . . [and] management and operation of

countermeasure programs . . . .’’ Id., 15,200. The secretary subsequently amended the PREP Act declaration

for various purposes. The amended declaration defines

‘‘covered countermeasures’’ for COVID-19 to include

‘‘[a]ny antiviral, any drug, any biologic, any diagnostic,

any other device, any respiratory protective device, or

any vaccine manufactured, used, designed, developed,
modified, licensed, or procured . . . [t]o diagnose, mitigate, prevent, treat, or cure COVID-19 . . . .’’29 Eleventh Amendment to Declaration Under the Public

Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 88 Fed. Reg.

30,769, 30,774 (May 12, 2023) (amended PREP Act declaration); see id., 30,774–75 (incorporating PREP Act’s

definition of ‘‘administration of covered countermeasures’’).

There is no dispute in the present case that the

COVID-19 diagnostic test administered to the decedent

on March 21, 2020, constitutes a covered countermeasure for purposes of PREP Act immunity. Nor is there

any claim that any other covered countermeasure was

employed. The issue that we must decide is whether

the decedent’s death was a loss ‘‘caused by, arising out

of, relating to, or resulting from the administration to

or the use by an individual’’ of that covered countermeasure under the PREP Act. 42 U.S.C. § 247d-6d (a) (1)

(2018).

The construction and application of the PREP Act

present an issue of statutory interpretation subject to

plenary review. ‘‘With respect to the construction and

application of federal statutes, principles of comity and

consistency require us to follow the plain meaning rule

. . . . Under the [federal] plain meaning rule, [l]egislative history and other tools of interpretation may be

relied [on] only if the terms of the statute are ambiguous.

. . . If the text of a statute is ambiguous, then we must

construct an interpretation consistent with the primary

purpose of the statute as a whole. . . . Thus, our interpretive process will begin by inquiring whether the plain

language of [the] statute, when given its ordinary, common meaning . . . is ambiguous. . . . In assessing

ambiguity, the meaning of the statute must be evaluated

not only by reference to the language itself but also in

the specific context in which that language is used, as

well as in the broader context of the statute as a whole.’’

(Citations omitted; internal quotation marks omitted.)

Soto v. Bushmaster Firearms International, LLC, supra,

331 Conn. 117–18.

Application of the PREP Act to the COVID-19 pandemic has been explored by many federal and state

courts, and, although most of those decisions are inapposite, a few provide useful guidance in the present

case. The purpose of the PREP Act, as supplemented by

the amended PREP Act declaration, was to encourage

covered providers to implement covered countermeasures as quickly and broadly as reasonably possible

without fear of liability. See Estate of Maglioli v. Andover Subacute Rehabilitation Center I, 478 F. Supp. 3d

518, 529 (D.N.J. 2020) (‘‘The PREP Act, as amended, is

an emergency response to the pandemic. Its evident

purpose is to embolden caregivers, permitting them

to administer certain encouraged forms of care (listed
COVID-19 ‘countermeasures’) with the assurance that

they will not face liability for having done so.’’), aff’d

sub nom. Estate of Maglioli v. Alliance HC Holdings,

LLC, 16 F.4th 393 (3d Cir. 2021).

In determining whether PREP Act immunity applies

in a given case, courts focus on the claims of the plaintiff, as pleaded in the complaint. See, e.g., Coleman v.

Intensive Specialty Hospital, LLC, Docket No. 21-0370,

2022 WL 17779323, *4 (W.D. La. December 19, 2022)

(defendant could not assert immunity under PREP Act

when, ‘‘as plead[ed], the claim concern[ed] a failure to

follow prescribed treatment predating any COVID-19

diagnosis’’); Levert v. Montefiore Home, Docket No.

1:21-cv-02312, 2022 WL 4591253, *4 (N.D. Ohio September 30, 2022) (‘‘The [c]omplaint merely referencing

[COVID-19] testing . . . is not the equivalent of alleging improper use or administration of [COVID-19] diagnostic tests. . . . Thus, it cannot be said that [the]

[d]efendants’ fake test results related to the administration of a covered countermeasure.’’ (Internal quotation

marks omitted.)), aff’d, Docket No. 22-3876, 2023 WL

4536093 (6th Cir. July 13, 2023); Acra v. California

Magnolia Convalescent Hospital, Inc., Docket No.

EDCV-21-898-GW-SHKx, 2021 WL 2769041, *6 (C.D. Cal.

July 1, 2021) (defendants were not entitled to immunity

under PREP Act when, contrary to defendants’ claim,

plaintiffs did not ‘‘base their claims on [the defendants’]

purchasing, administration, dispensing, prescribing, distribution and use of countermeasures, such as facemasks

and other [personal protective] and testing equipment

to prevent or mitigate the spread of COVID-19’’ (internal

quotation marks omitted)), aff’d, Docket No. 21-55813,

2023 WL 4105198 (9th Cir. June 21, 2023); Gunter v.

CCRC OPCO-Freedom Square, LLC, Docket No. 8:20-

cv-1546-T-36TGW, 2020 WL 8461513, *4 (M.D. Fla. October 29, 2020) (‘‘[The] [p]laintiff does not assert any

theory of liability that is in any way related to the

[d]efendants’ physical provision of any countermeasure. Thus, the [c]ourt concludes [that the] [p]laintiff’s

claims do not fall within the scope of the PREP Act

. . . .’’ (Internal quotation marks omitted.)); Whitehead

v. Pine Haven Operating, LLC, 75 Misc. 3d 985, 991,

170 N.Y.S.3d 855 (2022) (‘‘[t]he PREP Act applies, and

preempts state claims and confers immunity, only where

the allegations are that the defendant dispensed or administered countermeasures improperly, causing injury’’).

Existing case law also makes it clear that the immunity conferred by the PREP Act, as it relates to what

constitutes a covered countermeasure, is narrow in

scope and far less encompassing than the immunity

conferred by Executive Order No. 7V. See Estate of

Maglioli v. Andover Subacute Rehabilitation Center I,

supra, 478 F. Supp. 3d 532–33 (contrasting New Jersey

executive order, which, like Connecticut’s, provides

immunity from civil liability for any damages alleged

to have been sustained ‘‘as a result of an act or omission
undertaken in good faith in the course of providing

services in support of the [s]tate’s COVID-19 response,’’

with immunity under PREP Act, which ‘‘is far narrower’’

(emphasis omitted; internal quotation marks omitted)).

The PREP Act applies only to the ‘‘administration’’ of

a covered countermeasure. 42 U.S.C. § 247d-6d (a) (1)

(2018). Although ‘‘administration of the covered countermeasure’’ is defined broadly to include both the

‘‘physical provision of the countermeasures to recipients’’ and ‘‘activities and decisions directly relating to

public and private delivery, distribution, and dispensing

of the countermeasures to recipients . . . [and] management and operation of countermeasure programs’’;

Declaration Under the Public Readiness and Emergency

Preparedness Act for Medical Countermeasures Against

COVID-19, supra, 85 Fed. Reg. 15,200; unlike Executive

Order No. 7V, the PREP Act does not apply to all medical

services provided in an attempt to diagnose, treat, or

prevent the spread of COVID-19. See Estate of Maglioli

v. Andover Subacute Rehabilitation Center I, supra,

533 (‘‘[t]he drafters of the PREP Act, if they had meant

to cover any negligent act or omission in the course of

providing [COVID-19 related] health care, could easily

have done so’’ (internal quotation marks omitted)).

In particular, and importantly, countermeasures do

not include protocols or policies designed or implemented for the prevention or control of COVID-19. See

Crupi v. Heights of Summerlin, LLC, Docket No. 2:21-

cv-00954-GMN-DJA, 2022 WL 489857, *6 (D. Nev. February 17, 2022) (‘‘[A]n infection control program or

COVID-19 response policy is not a covered countermeasure. To put it simply, a program or policy is not a

product, drug, or device.’’), aff’d, Docket No. 22-15413,

2023 WL 4105306 (9th Cir. June 21, 2023); Whitehead

v. Pine Haven Operating, LLC, supra, 75 Misc. 3d 991

(nursing home COVID-19 protocols, such as social distancing, restricting visitors, requiring residents and staff

to wear face coverings, screening staff and visitors, and

discontinuing group activities, did ‘‘not amount to the

administration of countermeasures under the PREP

Act’’).

A

We first address the plaintiff’s appeal insofar as it

challenges the trial court’s dismissal of the claims alleging gross negligence, in particular those counts relating

to acts or omissions prior to receipt of the test results

on the evening of May 24, 2022. With respect to those

allegations, the trial court concluded that ‘‘[t]he gravamen of the [plaintiff’s] claim is that the defendants

delayed [the decedent’s] care for a heart attack because

the defendants mistakenly thought [the decedent] had

COVID-19. The reason why the defendants thought [the

decedent] had COVID-19 . . . arose out of and was

related to the fact that they were awaiting the results of

a COVID-19 diagnostic test, a covered countermeasure
under the PREP Act.’’ (Internal quotation marks omitted.) Accordingly, the trial court concluded that the

defendants were immune under the PREP Act from

suit and liability for their conduct, including grossly

negligent acts or omissions, occurring before receipt

of the test results. We disagree with the trial court’s

reasoning and reverse this aspect of its decision.

The allegations in the complaint control our analysis.

The plaintiff alleged in her complaint, among other

things, that the individual defendants were grossly negligent in that they (1) ‘‘failed to timely diagnose [the

decedent] with a myocardial infarction,’’ despite various test results that were indicative of that condition,

(2) ‘‘failed to immediately transfer [the decedent] to the

cardiac catheterization lab’’ for treatment and ‘‘caused

an unreasonable delay in delivering proper care and

treatment to [the decedent],’’ and (3) ‘‘failed to properly

monitor [the decedent], and left her alone in her room

when [they] knew or should have known she was suffering from a life-threatening condition.’’ The plaintiff did

not allege that the decedent’s death was caused by

the defendants’ improper administration, prescription,

dispensing, or use of the COVID-19 test. The plaintiff’s

claim, instead, is that the defendants were grossly negligent because they failed to diagnose the decedent as

suffering from a STEMI and because, even if they reasonably believed that the decedent’s symptoms were

caused by COVID-19, they failed to admit her immediately to the catheterization lab.30 We concluded in part

I of this opinion that the clinical COVID-19 diagnosis

and the hospital’s COVID-19 protocol, which resulted

in the delayed approval for the decedent’s admission

to the catheterization lab, were subject to the immunity

provision of Executive Order No. 7V because they were

undertaken in good faith and in support of the state’s

COVID-19 response. Neither the COVID-19 diagnosis

nor the protocol, however, was a covered countermeasure under the PREP Act. See, e.g., Crupi v. Heights

of Summerlin, LLC, supra, 2022 WL 489857, *6;

Whitehead v. Pine Haven Operating, LLC, supra, 75

Misc. 3d 991.

We recognize that the delay in treatment attendant

to the COVID-19 test may in fact have had a causal

relationship to the decedent’s death. Indeed, if the processing of the test had been instantaneous or taken

little time—a matter beyond the defendants’ control—

the decedent might well have been admitted to the

catheterization lab immediately, which may have saved

her life (or, regardless of the outcome, eliminated the

claim of malpractice). But the mere fact that the defendants administered and used a COVID-19 test did not,

in and of itself, dictate whether they should or should

not proceed with treatment while the test result was

pending. That decision was driven by the defendants’

clinical COVID-19 related diagnosis and the hospital’s

catheterization lab protocol. There would have been no
delay attributable to the defendants if they had immediately diagnosed her STEMI or, despite suspecting that

she suffered from COVID-19, had immediately admitted

her to the catheterization lab while the COVID-19 test

result was pending, as the plaintiff alleges they should

have done.31 Thus, as alleged by the plaintiff, the gross

negligence resulting in the decedent’s demise was not

causally related to, did not arise out of, and was not

related to the administration or use of the COVID-19

test within the meaning of the PREP Act.

The decision of the federal District Court in Goins

v. Saint Elizabeth Medical Center, Docket No. 22-91-

DLB-CJS, 2022 WL 17413570 (E.D. Ky. November 9,

2022), is instructive on this point. In that case, the plaintiff alleged that she developed certain health issues after

she received a COVID-19 vaccine. Id., *1. She further

alleged that, as a result of these health issues, she was

required to undergo multiple surgeries and other

courses of treatment, in the course of which several

of the defendants committed medical malpractice. Id.,

*1–2. The defendants contended that the plaintiff’s

claims were preempted by the PREP Act. Id., *4. The

District Court concluded that PREP Act immunity did

not apply to the plaintiff’s medical malpractice claims

arising from the defendants’ alleged negligence after

she received the COVID-19 vaccine because, although

the plaintiff alleged that the administration of the vaccine was a cause of her injuries, ‘‘none of her claims

[against the particular defendants who provided medical care to the plaintiff after she received the COVID-19

test], and most importantly, none of the facts asserted

alongside her claims, make[s] allegations regarding

[those defendants’] prescription, administration, or dispensation of the vaccine.’’32 Id., *8. The District Court’s

analysis in Goins recognizes that the fact that a covered

countermeasure may have been a cause of the plaintiff’s

injuries does not mean that a defendant is entitled to

immunity under the PREP Act if the plaintiff has alleged

that the defendant engaged in tortious conduct that

constituted a distinct and independent cause of the

plaintiff’s injuries that itself has no causal relationship

to the countermeasure. Put another way, there is no

immunity for medical malpractice that does not involve

the administration or use of a countermeasure, even if

the countermeasure was employed during the plaintiff’s

treatment and had a distinct and independent causal

relationship with the loss. See id. (PREP Act immunity

did not apply because Goins was ‘‘an ordinary malpractice suit brought under Kentucky law, by a Kentucky

plaintiff, against Kentucky defendants’’); see also Estate

of Maglioli v. Andover Subacute Rehabilitation Center

I, supra, 478 F. Supp. 3d 532 (PREP Act ‘‘leaves room

for ordinary claims of negligent or substandard care’’

relating to diagnosis and treatment of COVID-19); Wilhelms v. ProMedica Health System, Inc., 205 N.E.3d

1159, 1166 (Ohio App.) (mere fact that countermeasure
was employed during treatment of COVID-19 did not

mean that plaintiff’s ‘‘loss or injuries [were] caused [by]

arose out of, related to, or resulted from the administration of or the use of the [countermeasure]’’), appeal

denied, 170 Ohio St. 3d 1420, 208 N.E.3d 855 (2023).

The foregoing analysis leads us to conclude that the

PREP Act does not provide immunity from suit and

liability for losses arising from the defendants’ treatment of the decedent before the receipt of the negative

COVID-19 test result.

The defendants urge us to reach a contrary result in

reliance on the decision of the United States District

Court for the District of New Mexico in Storment v.

Walgreen, Co., Docket No. 1:21-cv-00898 MIS/CG, 2022

WL 2966607 (D.N.M. July 27, 2022).33 In Storment, the

plaintiff alleged that she received a COVID-19 vaccination at the defendant pharmacy. Id., *1. She became

dizzy after receiving the vaccine and saw no chairs

in the pharmacy that would allow her to sit until the

symptoms passed. Id. She sustained injuries after falling

as the result of her dizziness. Id. The defendant claimed

that it was immune from suit and liability for the plaintiff’s injuries under the PREP Act. Id. The District Court

concluded that, although ‘‘[t]his chain of events [was]

unfortunate and certainly deserving of a remedy . . .

it [could not] be divorced from the administration of a

covered countermeasure—the COVID-19 vaccine [that

the plaintiff] received.’’ Id., *3. Accordingly, the court

held that the defendants in Storment were immune from

suit and liability under the PREP Act. Id.

Storment is not on point because the plaintiff in that

case alleged that her injury was attributable to the

improper administration of a covered countermeasure—a COVID-19 vaccine. See id., *1. As we explained,

the plaintiff in the present case does not allege that the

decedent’s death was caused by, arose out of, or was

related to the improper administration or use of the

COVID-19 test but claims that the defendants were

grossly negligent when they failed to diagnose her

STEMI and to admit her immediately to the catheterization lab. Moreover, application of the immunity conferred by the PREP Act in Storment advanced the

purpose of the legislation, namely, to allow medical

providers to provide COVID-19 vaccines quickly and

broadly to the public without fear of being held liable

for any injuries attributable to them. If the plaintiff is

able to prove her allegations, no comparable policy is

advanced by the defendants’ conduct in the present

case.

B

We next address the defendants’ appeal challenging

the trial court’s determination that the PREP Act does

not provide immunity from the claims against Farrell

and the hospital involving events after they received
the decedent’s negative COVID-19 test result. The trial

court reasoned that receipt of the test result broke the

connection between the test and the medical treatment

provided to the decedent after the result became

known. We concluded in part II A of this opinion that

the PREP Act does not confer immunity from suit and

liability for the allegedly negligent conduct of Rizvi,

Ferraro-Borgida, and Duncan before the receipt of the

decedent’s negative COVID-19 test result. A fortiori, the

PREP Act does not provide immunity for the allegedly

negligent conduct of Farrell and the hospital after

receipt of the test result. If, as we have concluded, there

is no allegation of any causal relationship between the

administration of the COVID-19 test and the plaintiff’s

allegations of negligence before receipt of the test result

for purposes of the PREP Act, the receipt of the test

result could not have created such a connection. Indeed,

the defendants do not claim otherwise; they claim only

that the trial court incorrectly determined that the

receipt of the test result broke the connection between

the administration of the test and their allegedly negligent conduct. We therefore uphold the determination

of the trial court that Farrell and the hospital are not

immune from suit and liability under the PREP Act for

their allegedly negligent conduct occurring after receipt

of the negative COVID-19 test on this alternative ground.

Finally, we pause to comment on a superficial but

ultimately illusory tension that may be perceived

between our analysis under the PREP Act, in which

the delay associated with the COVID-19 testing of the

decedent does not trigger any immunity, and our analysis under Executive Order No. 7V, in which we conclude

that the defendants are entitled to immunity for the

period of time before the test result became known.

The difference in outcome arises because the respective

immunities are different in scope. Immunity under the

PREP Act hinges on there being a connection between

the allegedly tortious conduct and the administration

or use of a ‘‘covered countermeasure.’’ No such relationship exists in the present case because the alleged misdiagnosis occurred irrespective of the administration

or use of the COVID-19 test, the only countermeasure

at issue. The administration and use of the COVID-19

test was not tortious. Nor did the ensuing delay cause

the only alleged tortious conduct, i.e., the misdiagnosis.

The mere fact that a covered countermeasure was

administered at some point does not, without more,

entitle a defendant to immunity under the PREP Act.34

Immunity under Executive Order No. 7V, by contrast,

hinges on the existence of a nexus between the alleged

misdiagnosis and the defendants’ provision of services

in support of the state’s COVID-19 response. Those services plainly include the defendants’ diagnosis of a

COVID-19 related condition, regardless of whether that

diagnosis was, as the plaintiff claims, the result of negligence. The defendants’ alleged misdiagnosis in the pres-
ent case was itself the provision of services in support

of the state’s COVID-19 response, thus triggering the

immunity for the period of time when that diagnosis

remained operative.

In light of our conclusions in parts I and II of this

opinion, the plaintiff is entitled to proceed on the counts

alleging gross negligence against all of the defendants

and the count alleging negligence against Farrell and

the hospital. The defendants’ arguments as to whether

the allegations are legally sufficient to support gross

negligence; see footnote 10 of this opinion; are matters

properly resolved by the trial court in further proceedings.

The decision of the trial court is reversed in part

insofar as it dismissed counts V, VI, and VII of the

complaint and the case is remanded with direction to

deny the motions to dismiss with respect to those

counts and for further proceedings according to law;

the decision of the trial court is affirmed in all other

respects.

In this opinion the other justices concurred.

* August 8, 2023, the date that this decision was released as a slip opinion,

is the operative date for all substantive and procedural purposes.

1 Section 6 of Executive Order No. 7V provides in relevant part: ‘‘Notwithstanding any provision of the Connecticut General Statutes or any other

state law, including the common law, or any associated regulations, rules,

policies, or procedures, any health care professional or health care facility

shall be immune from suit for civil liability for any injury or death alleged

to have been sustained because of the individual’s or health care facility’s

acts or omissions undertaken in good faith while providing health care

services in support of the [s]tate’s COVID-19 response, including but not

limited to acts or omissions undertaken because of a lack of resources,

attributable to the COVID-19 pandemic, that renders the health care professional or health care facility unable to provide the level or manner of care

that otherwise would have been required in the absence of the COVID-19

pandemic and which resulted in the damages at issue, provided that nothing

in this order shall remove or limit any immunity conferred by any provision

of the Connecticut General Statutes or other law. Such immunity shall not

extend to acts or omissions that constitute a crime, fraud, malice, gross

negligence, [wilful] misconduct, or would otherwise constitute a false claim

or prohibited act pursuant to [§] 4-275 et seq. of the Connecticut General

Statutes or 31 U.S.C. [§] 3729 et seq. . . . The immunity conferred by this

order applies to acts or omissions subject to this order occurring at any

time during the public health and civil preparedness emergency declared

on March 10, 2020, including any period of extension or renewal, including

acts or omissions occurring prior to the issuance of this order attributable

to the COVID-19 response effort.’’

The executive order defines the terms ‘‘health care professional’’ and

‘‘health care facility.’’ See Executive Order No. 7V, § 6 (April 7, 2020). There

is no dispute in the present case that the defendants fall within these terms.

2 Section 247d-6d of title 42 of the 2018 edition of the United States Code

provides in relevant part: ‘‘(a) Liability protections

‘‘(1) In general

‘‘Subject to the other provisions of this section, a covered person shall

be immune from suit and liability under Federal and State law with respect

to all claims for loss caused by, arising out of, relating to, or resulting from

the administration to or the use by an individual of a covered countermeasure

if a declaration under subsection (b) has been issued with respect to

such countermeasure.

‘‘(2) Scope of claims for loss

‘‘(A) Loss

‘‘For purposes of this section, the term ‘loss’ means any type of loss,

including—

‘‘(i) death;

‘‘(ii) physical, mental, or emotional injury, illness, disability, or condition;

‘‘(iii) fear of physical, mental, or emotional injury, illness, disability, or
condition, including any need for medical monitoring; and

‘‘(iv) loss of or damage to property, including business interruption loss.

‘‘Each of clauses (i) through (iv) applies without regard to the date of

the occurrence, presentation, or discovery of the loss described in the clause.

‘‘(B) Scope

‘‘The immunity under paragraph (1) applies to any claim for loss that has

a causal relationship with the administration to or use by an individual of

a covered countermeasure, including a causal relationship with the design,

development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of such

countermeasure.

* * *

‘‘(d) Exception to immunity of covered persons

‘‘(1) In general

‘‘Subject to subsection (f), the sole exception to the immunity from suit

and liability of covered persons set forth in subsection (a) shall be for an

exclusive Federal cause of action against a covered person for death or

serious physical injury proximately caused by willful misconduct, as defined

pursuant to subsection (c), by such covered person. For purposes of section

2679 (b) (2) (B) of title 28, such a cause of action is not an action brought

for violation of a statute of the United States under which an action against

an individual is otherwise authorized. . . .’’

3 Each count of the complaint is brought against one of the defendant

physicians and the hospital. The hospital is being sued only for its derivative

liability for the acts of the defendant physicians, its employees or agents

(i.e., respondeat superior). We refer in this opinion only to the individual

defendants, unless there is a reason to mention the hospital.

4 The plaintiff, the hospital, and Farrell appealed separately to the Appellate Court. We then transferred the appeals to this court pursuant to General

Statutes § 51-199 (c) and Practice Book § 65-1, and consolidated them.

5 The decedent’s medical records also indicate that she told the Backus

staff that her granddaughter recently had strep throat and that a rapid strep

test was performed on the decedent. The records do not indicate whether

the test result was negative, but we presume that to be the case.

6 Cardiac catheterization is a procedure used for various interventional

and diagnostic purposes. The standard procedure for an acute STEMI is a

‘‘primary percutaneous coronary intervention,’’ in which a balloon is inserted

and inflated to remedy blocked blood flow to the heart. See M. Ahmad et

al., Percutaneous Coronary Intervention (last updated September 30, 2022),

available at https://www.ncbi.nlm.nih.gov/books/NBK556123/ (last visited

August 7, 2023).

7 The defendants neither submitted a written copy of the protocol nor

quoted the text of the protocol in any of their affidavits. The quotation in the

body of this opinion accompanying this footnote is taken from a statement

in the affidavit of Adam Steinberg, the hospital’s vice president for medical

affairs. That statement is consistent with the description of the protocol in

the other defendants’ affidavits. There is no indication that the plaintiff

disputed the existence of this protocol or its contents.

8 Troponin is a protein in the blood, which normally ‘‘stays inside [the]

heart muscle’s cells, but damage to those cells—like the kind of damage

from a heart attack—causes troponin to leak into [the] blood. Higher levels

of troponin in [the] blood also mean[s] more heart damage, which can help

[health care] providers determine the severity of a heart attack.’’ Cleveland

Clinic, Troponin Test, available at https://my.clevelandclinic.org/health/diagnostics/

22770-troponin-test (last visited August 7, 2023).

9 Counts I though IV alleged negligence respectively against Rizvi, FerraroBorgida, Duncan, and Farrell. Counts V though VIII alleged gross negligence

respectively against Rizvi, Ferraro-Borgida, Duncan, and Farrell.

10 The defendants also contended that the plaintiff’s claims of gross negligence should be dismissed because they were simply relabeled negligence

claims and, therefore, were legally insufficient. The trial court did not address

this argument.

11 The decision dismissing all counts against Rizvi, Borgiga-Ferraro, and

Duncan is an immediately appealable final judgment. See Practice Book

§ 61-3. The trial court’s denial of the motion to dismiss the counts against

Farrell (i.e., counts IV and VIII) is not a final judgment but is nonetheless

immediately appealable under an exception to the final judgment rule for

a colorable claim of immunity from suit. See, e.g., Miller v. Egan, 265 Conn.

301, 303 n.2, 828 A.2d 549 (2003) (‘‘[t]he denial of a motion to dismiss based

on a colorable claim of . . . immunity . . . is an immediately appealable
final judgment because the order or action so concludes the rights of the

parties that further proceedings cannot affect them’’ (internal quotation

marks omitted)).

12 The Appellate Court in Prime Management, LLC v. Arthur, supra, 217

Conn. App. 737, further determined that the plain meaning rule set forth in

General Statutes § 1-2z applied to its interpretation of an executive order.

See id., 750–51. We have some doubt about this conclusion, not only because

§ 1-2z on its face applies only to statutes, but also because the judicial

interpretation of executive orders may involve different considerations than

those implicated when we interpret legislation. We need not determine in

the present case, however, whether construction of a clear and unambiguous

executive order would be subject to the constraints imposed by § 1-2z

because, for the reasons set forth subsequently in this part of the opinion,

we conclude that Executive Order No. 7V is ambiguous.

13 Although the defendants do not claim that they are immune from suit

and liability pursuant to the ‘‘lack of resources’’ portion of Executive Order

No. 7V, we will nevertheless construe both parts of the provision in this

opinion because we must ensure that nothing in the lack of resources portion

affects our construction of the first part of the sentence. The immunity is

set forth as an integrated whole, and its meaning must be understood as

such. ‘‘We are obligated to search for a construction of the statute that

makes a harmonious whole of its constituent parts.’’ (Internal quotation

marks omitted.) Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, 130, 942

A.2d 396 (2008). We also note that the ‘‘lack of resources’’ portion of the

executive order is directly at issue in another case that we also decide

today. See Manginelli v. Regency House of Wallingford, Inc., 347 Conn.

581, 585, A.3d (2023).

14 See also Lipsey v. Walmart, Inc., supra, 2020 WL 1322850, *3 n.1, citing

J. Daley, Like Emergency Medicine Special Forces, Colorado Doctors and

Nurses Get Ready To Combat Coronavirus, Colo. Pub. Radio News, March 15,

2020, available at https://www.cpr.org/2020/03/15/like-emergency-medicinespecial-forces-colorado-doctors-and-nurses-get-ready-to-combat-coronavirus/

(last visited August 7, 2023) (noting that Colorado ‘‘will allow medical professionals licensed in other states to immediately start practicing . . . bring

in contract nurses from out of state . . . tap into [medical] students and

faculty,’’ and ask ‘‘former health workers to consider coming back to work’’),

J. Lemon, ‘‘New York Governor Asks Retired Doctors and Nurses To Sign

Up and Be on Call Amid Coronavirus Crisis,’’ Newsweek, March 17, 2020,

available at https://www.newsweek.com/new-york-governor-asks-retireddoctors-nurses-sign-call-amid-coronavirus-crisis-1492825 (last visited August 7,

2023) (‘‘New York’s Governor Andrew Cuomo called on retired medical

professionals to sign up to be on call to respond to the coronavirus pandemic’’), and L. Tanner, ‘‘US Hospitals Brace for ‘Tremendous Strain’ from

New Virus,’’ Associated Press News, March 13, 2020, available at https://

apnews.com/6c9b9686c4af21b9984341d330073979 (last visited August 7,

2023) (‘‘hospitals are setting up . . . triage tents, calling doctors out of

retirement, guarding their supplies of face masks and making plans to cancel

elective surgery as they brace for an expected onslaught of coronavirus

patients’’).

15 Section 19a-131a authorizes the governor to declare a public health

emergency. Section 28-9 (a) authorizes the governor to declare a civil preparedness emergency, and § 28-9 (b) further provides in relevant part: ‘‘(1)

Following the Governor’s proclamation of a civil preparedness emergency

pursuant to subsection (a) of this section or declaration of a public health

emergency pursuant to section 19a-131a, the Governor may modify or suspend in whole or in part, by order as hereinafter provided, any statute,

regulation or requirement or part thereof whenever the Governor finds such

statute, regulation or requirement, or part thereof, is in conflict with the

efficient and expeditious execution of civil preparedness functions or the

protection of the public health. The Governor shall specify in such order

the reason or reasons therefor and any statute, regulation or requirement

or part thereof to be modified or suspended and the period, not exceeding

six months unless sooner revoked, during which such order shall be

enforced. . . .

* * *

‘‘(7) The Governor may take such other steps as are reasonably necessary

in the light of the emergency to protect the health, safety and welfare of

the people of the state, to prevent or minimize loss or destruction of property

and to minimize the effects of hostile action. . . . ’’

16 Executive Order No. 7U contains an immunity provision, § 1, that is

identical to the one issued two days later in § 6 of Executive Order No. 7V,

except that the latter provision adds language stating that the immunity

applies notwithstanding ‘‘any other state law, including the common law
. . . .’’ (Emphasis added.) Executive Order No. 7V (April 7, 2020). Section

6 of Executive Order No. 7V superseded § 1 of Executive Order No. 7U, but

Executive Order No. 7V expressly states that the findings in Executive Order

No. 7U retain their effect, as do the remaining provisions. See id. The findings

in Executive Order No. 7V are entirely consistent with those in Executive

Order No. 7U.

17 Prevention of COVID-19 could apply to measures directed at protecting

an individual, as well as those directed to society generally or a class of individuals.

18 We recognize that the plaintiff brought the present lawsuit pursuant to

the wrongful death statute, § 52-555. Putting aside the question of whether

the plaintiffs’ negligence claims would be characterized as purely statutory or

common law in derivation; see Soto v. Bushmaster Firearms International,

LLC, 331 Conn. 53, 104–105, 202 A.3d 262, cert. denied sub nom. Remington

Arms Co., LLC v. Soto, U.S. , 140 S. Ct. 513, 205 L. Ed. 2d 317 (2019);

Executive Order No. 7V, § 6, explicitly applies to both common-law and

statutory claims, and we will not assume that the scope of the immunity

was intended to shrink or expand depending on whether the plaintiff is

asserting a common-law or statutory claim.

19 A similar concern would arise under § 28-9 (b) (1), which authorizes

the governor only to modify and suspend laws, regulations or requirements

that are ‘‘in conflict with the efficient and expeditious execution of civil

preparedness functions or the protection of the public health.’’ A different

constitutional concern would arise if an executive order exceeded the limits

of the authority conferred by § 28-9 (b)—an unconstitutional usurpation of

legislative authority. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 588–89, 72 S. Ct. 863, 96 L. Ed. 1153 (1952); see also, e.g., Bayshore

Enterprises, Inc. v. Murphy, Docket Nos. A-3616-19 and A-3873-19, 2021

WL 3120868, *9 (N.J. Super. App. Div. July 23, 2021) (acknowledging that

executive order issued in response to COVID-19 pandemic under New Jersey’s Emergency Health Powers Act would be ‘‘invalid if it usurps legislative

authority by acting contrary to the express or implied will of the [l]egislature’’

(internal quotation marks omitted)).

20 In part I C of this opinion, we mention other potential concerns regarding

the sweep of immunity provided by Executive Order No. 7V.

21 The plaintiff claims that, if she is not entitled on the present record to

reversal of that portion of the trial court’s decision against her, we should

remand the case for an evidentiary hearing on the issue of whether the

defendants’ misdiagnosis was objectively reasonable. The plaintiff has not

directed this court’s attention to anywhere in the record where she made

such a request to the trial court. In any event, we reject the request in light

of our conclusion that immunity does not depend on whether the defendants’

misdiagnosis was objectively reasonable.

22 In her brief in the defendants’ appeals, the plaintiff vigorously denies

that the record establishes that the defendants could not reasonably have

been expected to do anything more than they did after the receipt of the

negative COVID-19 test result to prevent the decedent’s death. We need not

resolve this question because the dispute relates to liability, not immunity.

23 Farrell’s contention that his treatment plan for the decedent, after receipt

of the test results, was a reasonable one given the long passage of time

since she initially suffered an acute cardiac event goes to the question of

liability, not immunity; so, too, does his contention that his treatment plan

for the decedent conformed to the one endorsed by the other defendant physicians.

24 In response to the plaintiff’s assertion that the defendants could have

ordered an echocardiogram after receipt of the negative COVID-19 test

result, the hospital claims that the defendants could not have done so

because its COVID-19 protocol precluded that procedure in the absence of

an ‘‘absolute clinical need . . . .’’ (Emphasis omitted; internal quotation

marks omitted.) The record does not establish conclusively either that an

echocardiogram was the only reasonably possible treatment for the decedent’s condition at that time or that she did not have an absolute clinical

need for one. The hospital also suggests that the defendants were required

to assume that the decedent suffered from COVID-19, even after receipt of

the negative test result. It is undisputed that all of the physicians who treated

the decedent contemplated that her treatment plan would change if she

tested negative for COVID-19, presumably because they believed that a

negative result would indicate that COVID-19 was not the cause of her

symptoms.

25 The plaintiff did raise a claim in the trial court that affording immunity

to the defendants in the present case would violate the open courts provision
of the state constitution. See Conn. Const., art. I, § 10. The trial court concluded that this provision was inapplicable because the plaintiff’s claims

were brought pursuant to the wrongful death statute, § 52-555, and the

plaintiff did not challenge that determination on appeal.

26 This court invited amici curiae to file briefs in the present case and a

related case, Manginelli v. Regency House of Wallingford, Inc., 347 Conn.

581, A.3d (2023); see footnote 13 of this opinion; to address the

following questions, on which the parties were ordered to submit supplemental briefs:

‘‘1. Does this case present an exceptional circumstance for this court to

invoke its authority under [Blumberg Associates Worldwide, Inc. v. Brown &

Brown of Connecticut, Inc.], 311 Conn. 123, 84 A.3d 840 (2014), to raise and

decide the issues identified below, which were not addressed by the parties?

‘‘2. If the answer to the first question is ‘yes,’ does the governor have the

authority under . . . § 28-9 (b) (1) or (7) and/or Casey v. Lamont, [supra,

338 Conn. 479], to suspend the common law?

‘‘3. If the answer to the second question is ‘no,’ what was the source of

the governor’s authority to enact [§] 6 of Executive Order [No.] 7V?

‘‘4. Under . . . § 28-9 (b) (1) or (7) and/or Casey . . . does the governor

have the authority to create and confer immunity through an executive

order?’’

27 The immunity conferred by Executive Order No. 7V does not cover

gross negligence. See Executive Order No. 7V, § 6 (April 7, 2000).

28 There is no claim in the present case that the defendant physicians are

not covered persons under the PREP Act. See 42 U.S.C. § 247d-6d (i) (2)

(B) (iv) (2018) (defining ‘‘covered person’’ to include ‘‘a qualified person

who prescribed, administered, or dispensed such countermeasure’’); 42

U.S.C. § 247-6d (i) (8) (A) (2018) (defining ‘‘qualified person’’ to include ‘‘a

licensed health professional or other individual who is authorized to prescribe, administer, or dispense such countermeasures under the law of the

State in which the countermeasure was prescribed, administered, or dispensed’’).

29 The liability protections provided by the amended PREP Act declaration

are retroactive to March 10, 2020, the date that Governor Lamont declared

a public health emergency. See Eleventh Amendment to Declaration Under

the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, supra, 88 Fed. Reg. 30,775.

30 The plaintiff did not specifically allege in her complaint that the defendants were grossly negligent when they failed to admit the decedent immediately to the catheterization lab, even if they reasonably believed that her

symptoms were being caused by COVID-19, because she did not preemptively anticipate the defendants’ immunity defense. We must read the complaint broadly in her favor, however, and we cannot conclude at this stage

of the proceedings that she would be precluded from attempting to establish

at trial that the standard of care requires immediate admission to the catheterization lab of any patient who presents with STEMI symptoms, even if

some other cause is suspected, in light of the severe consequences of a

delay in a definitive diagnosis.

31 Although not directly on point, the decision of the federal District Court

in Haro v. Kaiser Foundation Hospitals, Docket No. CV 20-6006-GW-JCx,

2020 WL 5291014 (C.D. Cal. September 3, 2020), is instructive. In Haro, the

plaintiff claimed that the defendant had required its hourly employees to

arrive at least fifteen minutes before the start of their work shift so that

they could undergo screening for COVID-19. Id., *1. The plaintiff sought

compensation for this time. Id. The defendant contended that it was immune

from suit and liability for this claim under the PREP Act. Id. The court

concluded that the plaintiff’s wage claim was ‘‘not causally connected to the

screening procedures themselves, but rather the requirement that employees

show up [fifteen] minutes before their shifts start. [The defendant] could

just as easily have implemented the screenings without the requirement that

employees show up early. In that case, the screening procedures would

simply have occurred while employees were on the clock and [the plaintiff]

would not have a [minimum wage] claim.’’ (Emphasis omitted.) Id., *3.

Similarly, in the present case, if the defendants had diagnosed the decedent

with a suspected STEMI and admitted her to the catheterization lab while

the COVID-19 test results were pending (as the plaintiff’s complaint, read

broadly in her favor, alleges they should have done), the pending COVID-19

test would have had no impact on the care that they provided to the decedent.

32 The specific issue addressed by the court in Goins was whether the

defendants who treated the plaintiff in that case after she received the
vaccine were ‘‘covered persons’’ for purposes of the PREP Act. See Goins

v. Saint Elizabeth Medical Center, supra, 2022 WL 17413570, *7–8. The court

concluded that they were not because the plaintiff made no allegation that

they prescribed, administered or dispensed the COVID-19 vaccine. See id.;

see also 42 U.S.C. § 247d-6d (i) (2) (B) (iv) (2018) (defining ‘‘covered person’’

to include ‘‘a qualified person who prescribed, administered, or dispensed

such countermeasure’’). As framed by the plaintiff in the present case, the

issue is not whether the defendants are covered persons, but whether the

complaint alleges that the death has a causal relationship with the administration to or use by an individual of a covered countermeasure. Accordingly,

we do not address the question of whether any or all of the defendants

were covered persons under the PREP Act. The Goins analysis nonetheless

supports the plaintiff’s position here because of the overlapping analyses

of these issues under the language of the statute.

33 The defendants also cite a number of cases that do not involve the

PREP Act for the proposition that the phrase ‘‘arising out of,’’ as used in

the PREP Act; 42 U.S.C. § 247d-6d (a) (1) (2018); should be interpreted

broadly. See Ford Motor Co. v. Montana Eighth Judicial District Court,

U.S. , 141 S. Ct. 1017, 1026, 209 L. Ed. 2d 225 (2021) (construing

phrase ‘‘arise out of or relate to the defendant’s contacts with the forum,’’

as used in court’s personal jurisdiction jurisprudence (emphasis omitted;

internal quotation marks omitted)); United States v. Shearer, 473 U.S. 52,

54–55, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985) (construing phrase ‘‘[a]ny claim

arising out of assault [or] battery,’’ as used in portion of Federal Tort Claims

Act, as excepting such claims from waiver of sovereign immunity (internal

quotation marks omitted)); Nationwide Mutual Ins. Co. v. Pasiak, 327 Conn.

225, 242–54, 173 A.3d 888 (2017) (construing phrase ‘‘arising out of,’’ as used

in insurance policies). These cases provide minimal guidance because they

do not involve the PREP Act. In our view the plaintiff’s claims do not ‘‘arise

out of’’ the administration of the COVID-19 test to the decedent, regardless

of the breadth of that term.

34 To illustrate this point, assume hypothetically that the COVID-19 test

had been administered at Backus, before the defendants’ involvement, but

the result thereafter was relayed to the defendants. In this scenario, the

defendants would not be immune under the PREP Act because their alleged

negligence—their misdiagnosis of a COVID-19 related condition—has no

causal relationship to the COVID-19 test performed earlier by some other

caregiver. By contrast, the defendants would be immune under Executive

Order No. 7V, until the test result came back, because the alleged malpractice

occurred in connection with diagnostic services provided by the defendants

in support of the state’s response to COVID-19.