On April 7, 2021, Gov. Andrew M. Cuomo signed legislation that repealed the COVID-19 malpractice immunity enjoyed by the New York healthcare profession since early in the COVID-19 crisis. This grant of immunity has been controversial since its inception. Proponents claimed it protected patients by ensuring the willingness of the healthcare profession to treat them. Opponents claimed the immunity endangered lives by incentivizing medical negligence and malpractice.
The Original Immunity Protections
New York originally granted COVID-19-related medical malpractice immunity to healthcare professionals on March 23, 2020, just when the nation (and the world) was going into lockdown in response to the first wave of infections. The grant of immunity, codified in the Emergency or Disaster Treatment Protection Act (EDTPA), applied to healthcare professionals as well as healthcare facilities such as hospitals and nursing homes (including long-term care facilities).
The immunity was extremely broad—it protected healthcare professionals from both criminal and civil liability arising from the diagnosis, prevention, or treatment of COVID-19. This immunity was not unlimited, however. Acts of willful misconduct or gross negligence, for example, were not shielded from liability. Immunity did, however, extend to harm arising from shortages of resources and staff.
“Good Samaritan” Protections Will Remain in Place
The original immunity protections included “Good Samaritan” protections for volunteer organizations. These protections were not repealed by Governor Cuomo’s repeal of the medical malpractice immunity formerly enjoyed by healthcare professionals and facilities.
Filing a Medical Malpractice Claim: The “Standard of Care” Challenge
To win a medical negligence malpractice claim, you must establish the standard of care for the medical procedure at issue. This is normally accomplished through expert medical witnesses. You must then prove that the defendant’s treatment fell far enough below this standard to constitute medical negligence. Finally, you must establish that this medical negligence caused you damages.
The problem with filing medical negligence and malpractice claim for conduct that took place early in the COVID-19 pandemic is that because COVID-19 was a new disease, the standard of care had not been clearly established yet. Only a skilled medical negligence and malpractice law firm is likely to be able to surmount such a formidable legal obstacle.
Can a Retroactive Repeal of Malpractice Immunity Succeed?
Some critics seek a retroactive repeal of COVID-19 malpractice immunity. In other words, if these critics have their way, you will be able to sue a healthcare professional or facility for acts they committed before New York repealed medical malpractice immunity.
Legislators are likely to hotly contest the retroactive repeal of COVID-19 malpractice immunity. A court might even find it unconstitutional as an ex post facto law or as a violation of due process. This means that if the alleged malpractice occurred before the repeal, succeeding on a malpractice case may involve an uphill struggle.
Critics Blame Immunity for a Multitude of Preventable Shortcomings
In September 2020 New York health inspectors conducted an evaluation of more than 75 nursing homes. The shortcomings they discovered were little short of horrifying:
- Staff failing to wear masks or wash hands;
- Nursing home residents not wearing masks and failing to observe social distancing protocols;
- Complete failure to monitor some nursing home residents due to staff shortages; and
- Insufficient COVID-19 testing, especially in the early stages.
What is most disturbing about the foregoing failures is that almost all of them were easily preventable. The only factor that was difficult to prevent by nursing home management was the shortage of testing resources.
Readmission of COVID-19 Patients to Nursing Homes
COVID-19 hit New York City hard around the time that the state granted malpractice immunity. In March 2020, Governor Cuomo issued an executive order that has subjected him to intense criticism ever since. Cuomo’s order required nursing homes to accept COVID-19 patients as they were discharged from hospitals, as long as they were “medically stable.” Astonishingly, they were not even allowed to test these residents for COVID-19 before readmitting them.
The stated reason for this requirement was the need to free up hospital beds for the most seriously ill patients to avoid the collapse of the healthcare system due to excess demand. Meanwhile, the USNS Comfort, a Navy hospital ship with over 1,000 beds, sat nearly empty in New York Harbor, while the Javits Convention Center was serving as a makeshift field hospital.
Predictably, COVID-19 began spreading quickly through New York nursing homes. Critics blamed the unprecedentedly rapid spread of the disease to a multitude of foreseeable causes, including:
- The extremely contagious nature of the COVID-19 virus;
- The compromised immune systems of many nursing home residents;
- The prevalence of pre-existing conditions such as obesity, diabetes, heart disease, and emphysema among nursing home residents;
- Overcrowded conditions at nursing homes, especially in certain private nursing homes for whom profit was the primary concern;
- Lack of ability of nursing homes to provide effective COVID-19 treatments that would be available at most hospitals;
- Nursing home staff who were inexperienced in preventing the spread of contagious disease; and
- Low-level staff who did not enjoy much paid sick leave, which encouraged them to work (and thereby spread disease) while ill with COVID-19.
The body count at New York nursing homes alone eventually far exceeded the entire number of deaths in the entire city of Wuhan, at least if Chinese statistics can be trusted.
The Partial Immunity Repeal of 2020
In May 2020, New York changed its policy and began prohibiting hospitals from sending COVID-19 patients to nursing homes. It wasn’t until late July, however, that the New York State Legislature partially revoked New York’s COVID-19 malpractice immunity. The repealing legislation reimposed liability with respect to prevention efforts, and it also removed immunity for individuals and facilities that arrange for healthcare services (as opposed to actually providing them).
Strike While the Iron Is Hot
If you believe that you might have been injured by medical negligence and malpractice, whether or not related to COVID-19, you might never know for certain unless an investigation is conducted. We can conduct such an investigation on your behalf if your claim appears to be strong. You will never owe us a dime for any of our services, however, unless we actually win your case.
Contact E. Stewart Jones Hacker Murphy using our online contact page or by calling us at (518) 284-3183. Either way, we will be happy to set up a free initial consultation to answer your questions and explore your options. Our offices are located in Albany, Colonie, Latham, Saratoga and Troy.