3 medical centers, patient sue to lift Whitmer ban on medical services

Beth LeBlanc
The Detroit News

Three West Michigan medical centers and a patient sued the state Tuesday seeking to end Michigan Gov. Gretchen Whitmer’s emergency orders that stopped medical services deemed “non-essential.”

The lawsuit filed in Western District of Michigan federal court by the conservative Mackinac Center for Public Policy argues medical providers “are on the brink of financial ruin” because of the forced postponement or cancellation of all “non-essential” surgeries required under Whitmer’s March 21 order.

The inability to give preventive medical care ultimately harms patients depending on it, the lawsuit said. Providers that violate the order risk misdemeanor charges that carry up to 90 days in jail and a $500 fine.

Governor Gretchen Whitmer announces the extension of the Michigan's Stay Home, Stay Safe Order on Friday, April 24, 2020. She is accompanied by the Michigan Department of Health and Human Services Chief Medical Executive Dr. Joneigh Khaldun (left).

“The curve has been flattened,” said Dr. Randal Baker, president of Grand Health Partners, a plaintiff in the case. “There will likely be spikes of cases in the future, but we can’t shut down non-COVID health care every time. We need to reassess the best practices to save the most lives, particularly where COVID-19 cases are low.”

The orders are unconstitutionally vague, violate due process rights and infringe on the commerce clause, which reserves the power to regulate interstate and foreign commerce to Congress, the lawsuit said.

The filing also challenges the legality of Whitmer's extension of the state of emergency past April 30 without the approval of the Legislature, arguing the move means "there is no end in sight" for the unilateral emergency declaration.

The lawsuit asks the judge for a preliminary and permanent injunction of the Whitmer’s executive order and a ruling that would allow the medical centers to continue normal operation on the premise that the state’s executive order is unconstitutional. All of the Grand Rapids federal judges are appointees of Republican presidents. 

Attorney General Dana Nessel's office is reviewing the lawsuit, Nessel spokesman Ryan Jarvi said. 

The lawsuit is one of several in state and federal courts that challenge Whitmer’s executive orders. None of the lawsuits so far have succeeded in obtaining an injunction of the governor's orders.

The lawsuit against Whitmer, Attorney General Dana Nessel and state Department of Health and Human Services Director Robert Gordon was filed by Grand Health Partners in Grand Rapids, Wellston Medical Center of Wellston, Primary Health Services of Ludington and Jeffery Gulick of Owosso. 

Gulick was supposed to get his right knee replaced March 20 at Memorial Hospital in Owosso. But the governor’s order announced in the afternoon of March 20 banned non-essential procedures and meant the cancellation of the surgery and follow up care for his left knee, which had previously been replaced. 

“He is in excruciating pain and unable to get prescription pain medication until he can be seen on June 11,” the lawsuit said. “As a result of the debilitating pain, Mr. Gulick has had to reduce his work hours by 80%.”

Grand Health’s doctors, dieticians and physician assistants provide services such as endoscopies, appendectomies and bariatric care, including bariatric surgeries that are needed before an individual qualifies for joint replacement. 

But because of the executive order, some of the patients are in “agonizing pain” or waiting too long for care until a condition “has progressed far beyond a state in which it would have been easily treatable." 

“Grand Health furloughed most of its employees and has pushed back almost all of its patients’ procedures and post-operative support meetings,” the lawsuit said. “If the shutdown continues, Grand Health will almost certainly go out of business, and its medical staff will be out of work.”

More than 90% of the patients at Wellston Medical Center and Primary Health Services are low-income Medicaid or senior Medicare patients who require largely non-emergency, but important care, the lawsuit said. The clinic usually sees 90 to 100 patients a day, but the governor’s order banning non-essential procedures caused patient census to drop 95%.

One patient, the lawsuit said, had a stent in his ureter because of a kidney stone. 

“The stent was supposed to be removed in two weeks,” the lawsuit said. “That procedure could not be scheduled for two months, resulting in a bladder and kidney infection. The infection required hospitalization and emergency surgery.”

Whitmer’s order specifically barred bariatric and joint replacement surgeries unless there was an emergency where “postponement would significantly impact the health, safety and welfare of the patient.”

Chief Medical Executive Dr. Joneigh Khaldun assured health providers in a May 3 letter that the order “is intended to be flexible” to allow for clinician judgement on what care is essential, but it's unclear whether Khaldun’s assurances have “any weight," the lawsuit said.

“Due to the criminal penalties imposed by the executive order, these vagueness concerns are heightened,” the lawsuit said.