Cheyenne Hospital Says It Can’t Be Sued For Not Treating Crash Victim Over Mask Policy

In response to a Colorado man's lawsuit claiming he was refused emergency medical care because he wouldn’t put on a face mask, Cheyenne Regional Medical Center says it has governmental immunity.

Clair McFarland

December 30, 20235 min read

Cheyenne regional

Cheyenne Regional Medical Center claims governmental immunity protects it from being sued by a Colorado man who claims emergency room staffers there wouldn’t treat him in 2021 because he refused to wear a face mask.  

Christopher Fonte filed a lawsuit against the hospital in August in the U.S. District Court for Wyoming.  

Fonte’s lawsuit complaint says he was in a severe T-bone vehicle crash two years ago that left him fighting for breath, wracked with chest pain and head and body injuries. When he went to the emergency room in Cheyenne, staff asked him to wear a mask so they could evaluate him.  

Still struggling to take a full breath, Fonte refused to wear a mask and had to leave the emergency room without the medical treatment he needed, his complaint alleges.  

In a Friday motion and memorandum to dismiss the lawsuit, the hospital claims governmental immunity under a Wyoming law – passed in 2021 – that protects health care providers from lawsuits relating to their COVID-era actions.  

“Requiring patients to wear masks during a global pandemic to prevent transmission of a deadly virus is neither ‘gross negligence’ nor ‘willful or wanton misconduct,’ particularly in a health care setting where vulnerable patients are present,” says the hospital’s memo.  

The document also says Fonte didn’t announce, before suing, that he was about to sue a government entity, though state law requires it in many cases.  

Wyoming Protects Hospitals From COVID Lawsuits 

The hospital claims government immunity under a law the Wyoming Legislature passed April 6, 2021. The statute says health care providers “shall be immune from liability for damages” relating to COVID-19.  

People still can sue a health care provider for COVID-related damages if they can demonstrate the provider acted with “gross negligence or willful or wanton misconduct.” 

The hospital says Fonte failed to demonstrate gross negligence or willful or wanton misconduct on its part.  

“Plaintiff’s claims arose in the middle of the deadly COVID-19 pandemic and must be considered in that context,” says the memorandum, which argues further that the hospital’s “alleged conduct (was) requiring Plaintiff to wear a harmless mask to prevent the spread of a deadly virus.” 

About To Sue You, Government 

Wyoming law requires generally that a person suing the government must file a notice of claim at the entity’s business office within two years of the injury sparking the lawsuit.  

Cheyenne Regional Medical Center is an extension of the Laramie County government.  

People suing state and local governments for violating their rights under the federal civil-rights-action law (42 USC 1983) do not have to file a notice of claim, the memorandum says.  

But Fonte didn’t file his lawsuit under that statute. He filed it under the federal Emergency Medical Treatment and Active Labor Act (EMTALA). That act says it doesn’t preempt state law except in areas where its language conflicts directly with state law.  

EMTALA doesn’t conflict with Wyoming’s law requiring people to announce they’re about to sue the government, the hospital’s memorandum argues.  

If a federal judge agrees with the hospital, Fonte will have missed his two-year claim deadline altogether: It passed Aug. 5.  

The hospital is represented by Denver-based attorney Jonathan Corrigan.  

A Little Background  

Fonte’s complaint says wearing a mask wasn’t an option for him after the car crash.  

“The nurse insisted that Plaintiff must ‘comply’ and put on a mask or he would not be treated,” the complaint says.   

He was reportedly “in no shape to be dealing with such unreasonable and careless behavior,” so he offered to go outside, but he asked that a senior nurse come out to assess him and help with his intake.   

He sat down, exhausted, on the concrete ground outside. The complaint says a nurse came out to him and asked if he “had some frustration about the mask policy?”  

Fonte said he couldn’t breathe well, he’d been in an accident, and he needed to be seen.   

None of the staff offered screening or help, or an oxygen mask or “any attention whatsoever,” Fonte’s filing alleges.   

“Instead, all nurses and personal (sic) fixated on forcing some level of compliance in wearing a mask,” the filing reads. “Even going so far as to say that it could be worn loosely, and that she didn’t agree with the policy but that as an employee she must enforce it.”   

The Centers for Medicare and Medicaid (CMS) allowed hospitals to admit patients without masks if they had difficulty breathing while masked, the complaint says.  

Fonte’s friends were also there, and the complaint says they urged hospital staff to help the man.   

“The staff simply walked away leaving Plaintiff at the emergency entrance,” it reads.   

He “had to be transported back home” and taken for treatment to other medical offices over the following days and weeks in what his complaint describes as an unnecessary prolonging of treatment.   

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Clair McFarland

Crime and Courts Reporter