In March 2020, New York Governor, Andrew Cuomo, responded to the COVID-19 crisis by issuing an executive order granting legal immunity to many healthcare workers, which protects them from negligence and malpractice lawsuits. The state legislature followed up by passing legislation, which Governor Cuomo signed, that extended and broadened the scope of this immunity.
The purpose of Governor Cuomo’s executive order and the subsequent legislation is to encourage healthcare workers to join the fight against COVID-19 (often risking their own health to do so) without an inordinate fear of financial ruin that could be caused by a lawsuit. The immunity granted is not absolute, however. In certain cases, it can be stripped from a healthcare worker and he can still be sued for medical negligence and malpractice.
How Legal Immunity Works
Legal immunity is not so much a defense against liability as it is a defense against ever-standing trial in the first place. A defendant who believes he has legal immunity should assert it as soon as he answers the plaintiff’s complaint against him, and it will be the first issue that will have to be resolved. If it is resolved in the defendant’s favor, no other evidence matters. The defendant cannot be tried at all, no matter how convincing the evidence against him.
There are two kinds of legal immunity: civil immunity (immunity from a lawsuit) and criminal immunity (immunity from criminal prosecution). The type of immunity that is the subject of this article is civil immunity, not criminal immunity.
Executive Order 202.10
Governor Cuomo issued Executive Order 202.10 on March 23, 2020. Although it was originally scheduled to expire on April 22, 2020, the Emergency or Disaster Treatment Protection Act (“EDTPA”) superseded it on April 6, 2020. Executive Order 202.10 included the following:
- It provided qualified legal immunity to healthcare providers against civil lawsuits seeking money damages for injury or death caused by any act or failure to act, that occurred while providing treatment during the COVID-19 outbreak.
- The legal immunity thereby granted could be stripped from a healthcare provider, allowing him to be sued, if the healthcare provider caused harm due to gross negligence or some other mental state of comparable culpability.
- The executive order did not clarify whether legal immunity would apply only to healthcare provider decisions involving the treatment of COVID-19 patients or whether it would also apply to healthcare providers treating patients whose cases are affected by the COVID-19 crisis (a cancer patient whose chemotherapy was delayed due to COVID-related hospital congestion, for example).
An Executive Order Becomes Law of the Land: The Emergency or Disaster Treatment Protection Act
Unlike Executive Order 202.10, the EDTPA is legislation, not an executive order. Since the granting of legal immunity on a widespread scale is more broadly recognized as the prerogative of the legislature rather than of the executive branch, this legislation places COVID-related immunity on firmer legal ground. It also operates retroactively to March 7, 2020 – 16 days before Governor Cuomo issued Executive Order 202.10.
The EDTPA is included in Cuomo’s annual budget for the fiscal year 2021, and also as a new Article 30-D of the Public Health law. It provides qualified legal immunity to:
- nursing homes;
- nurses’ aides;
- nursing attendants;
- home healthcare providers;
- medical doctors; and
- other health care professionals.
Among its other protections, the EDTPA immunity protects the above-listed people and institutions from the harmful consequences of decisions that resulted from a shortage of resources (masks or ventilators, for example) or staff.
This immunity is temporary – it lasts until the expiration of Governor Cuomo’s emergency declaration, including any extensions. Like Governor Cuomo’s original executive order, the new legal immunity is qualified. It can be stripped from a defendant in cases of harm that was caused by willful misconduct, gross negligence, reckless misconduct, and/or intentional infliction of harm.
Since the immunity conferred is civil immunity, criminal behavior will also strip a healthcare provider of legal immunity.
Gross Negligence, Willful or Reckless Misconduct, and Intentional Infliction of Harm: What’s the Difference?
Gross negligence, willful or reckless misconduct, and intentional infliction of harm will all strip a healthcare provider of legal immunity. Below are descriptions of each of these concepts.
Under New York law, gross negligence is more serious than ordinary negligence. To qualify as gross negligence, an act or omission must exhibit reckless indifference to the rights and safety of others. It is characterized by the failure to exercise even the slightest care.
The difference between gross negligence and ordinary negligence, which is currently protected by qualified immunity, lies in the magnitude of the deviation from the applicable standard of care. There is no objective dividing line; it all depends on the circumstances.
A surgeon operating on a patient while willfully intoxicated would almost certainly qualify as gross negligence, for example, while a lesser error might qualify as the type of ordinary negligence that would result in malpractice damages if not for the protection afforded by Cuomo’s qualified immunity.
Willful or Reckless Misconduct
A person commits willful or reckless misconduct when he intentionally acts (or fails to act) with the knowledge that his act or omission will probably cause harm. Imagine a doctor, for example, refusing to perform CPR on someone having a heart attack because his shift ended five minutes ago.
Willful or reckless misconduct is similar to gross negligence, except that it focuses more on the harm caused rather than on the behavior of the perpetrator. Some courts attempt to distinguish between willful and reckless misconduct. However, the distinction is so fine that it is not worth delving into here.
Intentional Infliction of Harm
Intentional infliction of harm means that the perpetrator positively intended the harm that resulted. Imagine a health care provider, for example, inflicting a beating on a nursing home resident or withholding food as a form of punishment. This type of behavior is not only unprotected by legal immunity, it typically results in criminal prosecution.
Because it is so difficult to revoke legal immunity (little short of absolutely outrageous behavior on the part of the healthcare provider seems to be enough to violate the above-listed standards), the EDTPA is likely to greatly lower the risk of medical negligence and malpractice lawsuits that hospitals, nursing homes, other healthcare facilities, staff, and insurance companies normally face.
Criticism of New York’s COVID Immunity Laws
New York’s legal immunity laws were designed to encourage doctors and other healthcare professionals to join the fight against COVID-19, and even to recruit new healthcare professionals, by reducing their risk of civil liability. Critics assert that the legal immunity concept has backfired badly, resulting in a far higher death toll than necessary. The following are some of the “hot zones” of criticism.
The Nursing Home Crisis
Astonishingly, the EDTPA actually required nursing homes to accept the readmission of medically stable nursing home residents who had been discharged from the hospital after being treated for any condition, including COVID-19. Furthermore, the nursing home was not even allowed to test any of these readmissions for COVID-19 to determine if they were still contagious.
The results were predictable. New York nursing homes were ravaged by COVID-19 to the point that, as of mid-June 2020, over 6,000 New York nursing home patients had died from the disease, representing more than six percent of New York’s total nursing home population.
That is the official count, anyway. Critics assert that even this death toll has been undercounted. Governor Cuomo has offered little comfort in his comments on the topic, supporting the idea that nursing homes are under no legal obligation to accurately count death rates.
Increased Likelihood of Medical Negligence and Malpractice
New York’s COVID immunity laws eliminate many normal record-keeping requirements in order to allow health care providers to quickly perform tasks necessary to respond to a very large and sudden influx of COVID-19 patients. They also allow healthcare providers who are not doctors to provide medical treatment without supervision from a physician as long as the medical services they provide are within their training.
Although these provisions were designed to help the state deal with an epidemic large enough to overwhelm New York’s healthcare system, the lack of accountability that is inherent in these rules, critics say, could result in serious errors being committed by poorly trained staff, with no opportunity for the correction of errors by a supervising physician and no opportunity to use medical records to prove they ever even occurred.
No Justice for Survivors
A large number of COVID-19 deaths are inevitable – there is simply no way around that harsh truth. It is almost as likely to be true, however, that many unnecessary deaths are going to result (and have already resulted) from the “free ride” from accountability that legal immunity provides. Two kinds of survivors will see no justice: (i) people who were harmed by substandard treatment and (ii) the grieving loved ones of COVID-19 victims whose deaths were preventable.
We’re Here to Help
If you believe that you were a victim of medical negligence and malpractice during the validity of Governor Cuomo’s executive order or the subsequent Emergency or Disaster Treatment Protection Act, your claim is not necessarily lost. Since the immunity granted to healthcare workers is not absolute, there may be a way around it. And if there is, we will find it.
Contact E. Stewart Jones Hacker Murphy immediately, either online or at (518) 730-7270, to set up a free initial consultation on your case. Our offices are located in Albany, Colonie, Schenectady, Saratoga, and Troy.