- The Washington Times
Thursday, May 14, 2020

Medical professionals and a patient in Michigan have filed a lawsuit against Democratic Gov. Gretchen Whitmer as the battles grow between her and those favoring relaxing the economic shutdown she has imposed in response to the coronavirus crisis.

Their lawsuit in federal court comes at a time when Ms. Whitmer continues to engage in a public spat with a 77-year-old barber, who has defied various orders and as of Thursday morning continued to cut hair at his Owosso shop.

The plaintiffs allege in federal court that Ms. Whitmer’s “drastic, unprecedented [and] unilateral executive actions” to cease economic activity that her office deemed nonessential were based on “grossly inaccurate” models that no longer apply and therefore should be lifted.

“Medical providers are on the brink of financial ruin, facing extreme revenue shortages caused by the Governor’s order forcing the postponement or cancellation of so-called ‘non-essential’ procedures,” said the suit filed by the Mackinac Center Legal Foundation and a private law firm, Miller Johnson. “Thousands of healthcare workers across Michigan have been furloughed or laid off.”

In addition to the economic devastation, Ms. Whitmer’s order has left hospitals and patients facing a dangerous backlog on procedures that will create a public health catastrophe of its own, said Dr. Randal Baker, a general surgeon and president of Grand Health Partners, a plaintiff based in Grand Rapids.

“This whole ‘elective-procedure’ thing is now a time bomb,” Dr. Baker told The Washington Times. “There is no good reason to have a ban on elective surgery any more. This is now a significant health problem for the people of Michigan and our patients, and I’ve had one patient attempt suicide — a very serious attempt.”

A patient of Grand Health Partners needing to repair a damaged feeding tube has been unable to have the procedure performed, and another needing gallbladder surgery has developed gangrene during the enforced shutdown, the lawsuit alleged.

Similarly, Jordan Warnsholz, a physician assistant who owns two Michigan clinics and is a plaintiff, blasted Ms. Whitmer as engaging in a one-size-fits-all policy and having an imperious attitude.

“There’s immense fear in the medical community toward Gov. Whitmer and how terribly she’s treated other people,” Mr. Warnsholz said. “What we have seen is tremendous damage, excessive damage to patients that was largely preventable if she had put in place better parameters than her blanket restrictions.”

Last week, Ms. Whitmer intimated “important” medical work was never prohibited under her orders, but Mr. Warnsholz disputed that and said to date there has been no change in Michigan’s public health code that would make him and other practitioners comfortable resuming work.

“She’s backtracking — she says her original order did not imply a complete ban of ‘non-emergency’ medical procedures and she’s right, it explicitly banned them,” he said.

In addition to Ms. Whitmer, the suit names Michigan’s Attorney General Dana Nessel and Robert Gordon, the state’s Department of Health and Human Services director as defendants.

A call to Ms. Whitmer’s office seeking comment was not returned.

The lawsuit is but one salvo in an escalating battle between Ms. Whitmer and those who believe Michigan must more rapidly open up its economy to stave off an economic catastrophe. The lawsuit said the lockdown orders were issued at a time when one estimate from the Centers for Disease Control and Prevention put the projected number of nationwide infections at between 160 million and 214 million, with deaths of between 200,000 and 1.7 million.

Those figures have proved wildly inflated thus far, the lawsuit noted. As of Thursday, more than 85,000 deaths have been attributed to the coronavirus which afflicted the U.S. and other nations after first infecting people last year in Wuhan, China.

With a population of 9.9 million, Michigan has reported 48,391 confirmed cases of COVID-19, according to the state’s Department of Health and Human Services. Of that total, the state has attributed 4,714 deaths to the virus and 22,686 recoveries.

The Michigan legislature, which has tried to curb Ms. Whitmer’s powers during the pandemic, has also filed a lawsuit against her handling of the virus, which has hit much harder in some parts of the state than others. Ms. Whitmer’s legal team labeled the lawsuit a “power grab” in a response Tuesday.

On April 27, the medical lawsuit alleges, Ms. Whitmer conceded the economic shutdown had achieved its desired result of “flattening the curve” of the virus so that the state’s medical infrastructure would not be overwhelmed.

“Graphics depicted that while Governor Whitmer’s administration anticipated 220,000 patients being hospitalized without social distancing efforts, there had only been 3,000 hospitalizations as of April 27,” according to the suit. “That is less than 1.4% of the projected COVID-19 hospitalizations underlying the governor’s declared states of emergency and disaster.”

In fact, state data shows Michigan hospitals are “well-stocked with over 2,400 available ventilators, nearly 1,000 available ICU beds, and more than 7,000 available hospital beds,” the lawsuit said.

Dr. Baker said that far from being crushed by waves of coronavirus patients, that many hospitals in Michigan have instead had to furlough or layoff employees because of a huge reduction in provided services. His own practice had furloughed roughly 80% of its more than 50 employees, he said.

“The whole thing is electives are often done so that they don’t become emergencies,” Dr. Baker said, noting many colleagues have fled the state. “Hospitals are in a real quandary now.”

One of those targeted by Ms. Whitmer and cited by Mr. Warnsholz as an example of her approach, is Karl Manke, the Owosso barber. Mr. Manke has become something of a folk hero for desiring to work rather than take public aid during the COVID-19 emergency, and the county sheriff there made clear he would not divert resources into shutting down Mr. Manke’s tiny operation.

On Monday, Ms. Whitmer’s administration went to court seeking a temporary injunction that would close Mr. Manke’s shop, and lost. A petition before the same judge essentially to reconsider that ruling is slated to be heard May 22, according to David Kallman, an East Lansing attorney who represents Mr. Manke.

Meanwhile, stinging from the judicial rebuke Ms. Whitmer’s administration moved to strip Mr. Manke of his operating license without a hearing, Mr. Kallman said. That ruling was handed down Tuesday night, but as of Thursday no one had served notice to Mr. Manke and thus he continued to give haircuts.

“And we are prepared to go to court the minute someone does try to serve him,” Mr. Kallman said.

• James Varney can be reached at jvarney@washingtontimes.com.

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