The rapid spread of the COVID-19 global pandemic across New York in March brought about a dizzying set of changes, especially involving the state’s network of hospitals, nursing homes and other health care facilities.

Recognizing the need for health care workers to be able to act during the crisis without fear of lawsuits or being held liable for conditions for which they have limited control, the state adopted the Emergency or Disaster Treatment Protection Act (“EDTPA”). The act broadly protects workers and their employers from liability for actions taken in treating COVID-19.

Not all New Yorkers believed that health care workers and health care facilities should receive such broad immunities from liability related to COVID-19, and following the enactment of the EDTPA, legislation was introduced to limit this immunity. A bill recently signed by Gov. Andrew Cuomo rolls back some of the immunity provided by the earlier passage of the EDTPA. If you or your facility face claims or lawsuits arising out of care and treatment rendered during the COVID-19 pandemic, we strongly recommend that you review the immunities provided under this new law and consult with legal counsel to clarify any concerns.

Overview of Emergency or Disaster Treatment Protection Act

The EDTPA, now codified as part of Public Health Law Article 30-D, was adopted as part of the New York State Budget for Fiscal 2021 at a time when the state had not yet reached the peak of its COVID-19 cases.

The legislation establishes certain immunity for applicable health care facilities and professionals during the COVID-19 crisis “to promote the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency.”

The EDTPA affords health care facilities and health care professionals immunity from any liability, civil or criminal, for any harm[1] or damages[2] alleged to have been sustained as a result of an act or omission in the course of providing health care services, so long as the criteria below is met:

• First, the health care facility or health care professional is providing health care services in accordance with applicable law, or otherwise where appropriate pursuant to a COVID-19 emergency rule;
• Second, the act or omission occurs in the course of providing health care services and the treatment of the individual is impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives; and
• Lastly, the health care facility or health care professional is providing health care services in good faith.

Each category must be satisfied before the immunities apply, but there are certain limitations. The immunities do not apply if the harm or damages were caused by an act or omission that is willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the health care facility or health care professional providing health care services. However, decisions resulting from a resource or staffing shortage will not be considered to be willful or intentional and will not fall within this exception.

The act applies to various parties in health care, including:

• Health care facilities, including hospitals, nursing homes and facilities licensed or authorized under Article 28 of the Public Health Law, Articles 16 and 31 of the Mental Hygiene Law or authorized to provide health care services under a COVID-19 emergency rule.
• Health care professionals, which broadly includes physicians, physician assistants, specialist assistants, pharmacists, nurses, licensed midwives, psychologists, social workers, certain mental health practitioners, respiratory therapists and technicians, and clinical laboratory technicians. It also extends to other categories of workers, including facility administrators, board members, home care workers and others as specified in N.Y. Public Health Law § 3081.

Narrowing Liability

After the enactment of the EDTPA, and hearing from industry advocates, trial lawyers and families of patients and residents affected by COVID-19, the legislature adopted Senate Bill 8835 as a way of redefining and limiting the scope of the liability protections. On August 3, 2020, Gov. Cuomo signed this legislation to amend the immunity provisions.

The EDTPA applies to “health care services”, as that term is defined in Article 30-D. Under the bill signed earlier this week, the term “health care services” was narrowed significantly. The amendment removed from the Public Health Law the broad immunity protection for treatment rendered to patients or residents during the COVID-19 pandemic that was not directly related to treating a known or suspected case of COVID-19. The bill also limited the immunity protections for any preventative treatment or services related to the prevention of COVID-19 or for arranging for health care services. In other words, in order for immunity to apply, treatment must be directly related to the diagnosis or treatment of a confirmed or suspected case of COVID-19.

The EDTPA is retroactive to March 7, 2020, the date Governor Cuomo issued the Executive Order declaring a disaster emergency in the State of New York. It expires when the state of emergency is lifted. In other words, the immunities provided in the EDTPA will be available to applicable health care facilities and providers to defend against claims that arise out of health care services rendered during this period.

Potential Implications on Claims

How will the immunities affect malpractice or negligence claims? While the application of the EDTPA has yet to be seen, it is important to note that there is no immunity from being sued, meaning, there remains potential to incur costs of defending against a lawsuit or claim where immunity from liability exists under the EDTPA.

Notwithstanding the immunities afforded by the EDTPA and the expectation that these immunities will both reduce the number of malpractice and negligence suits filed and increase the number of dismissals of applicable claims, we also expect to see claims from the plaintiff’s bar contesting the constitutionality and enforceability of the applicable Executive Orders and statutory immunity afforded by the EDTPA.

Anticipating and Defending Claims

What will these malpractice and negligence claims look like? Again, while this largely remains to be seen, we anticipate that claims alleging negligent care and treatment of a COVID-19 positive patient may focus on several theories of negligence, such as delayed diagnosis and treatment of COVID-19, wrongful death, inadequate staffing, inadequate supplies and failure to comply with State mandates regarding staffing. Other claims are possible as well.

Going back and reliving the crisis-oriented decisions of the past few months will not be easy for anyone – neither health care employees nor administrators, nor the families making claims about loved ones. The issues are complicated and fraught with emotion. Handle each case carefully, know your rights and legal protections, and as always consult with counsel for the advice you need to handle each matter appropriately.

Click here to read the full text of Senate Bill 8835 as signed by Gov. Cuomo.

[1] Harm includes physical and nonphysical contact that results in injury to or death of an individual. See N.Y. Pub. Health Law § 3081(1).

[2] Damages means economic or non-economic losses for harm to an individual. See N.Y. Pub. Health Law § 3081(2).