New York Eliminates Some Liability Protections For Health Care Facilities and Professionals Relating to the COVID-19 Emergency

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Seyfarth Synopsis: On August 3, 2020, Governor Andrew Cuomo signed a new law that rolled back protections for nursing homes and hospitals in New York in connection with COVID-19 liabilities, thereby opening the door to lawsuits against health care facilities (and health care professionals) for actions that are not involved in the direct diagnosis, treatment, assessment, or care of COVID-19.

On August 3, 2020, Governor Andrew Cuomo signed Senate Bill 8835, which eliminated a number of the protections provided under the Emergency or Disaster Treatment Protection Act (“EDTPA”).  New York first passed the EDTPA as part of the New York State budget, on April 3, 2020.  The EDTPA applied retroactively to the beginning of the COVID-19 emergency declaration in New York, on March 7, 2020.

The EDTPA, as originally passed on April 3, 2020, provided health care facilities and health care professionals with protection from civil and criminal liability in connection with COVID-19 related health care services and in connection with the care of any other individuals during the period of the COVID-19 emergency.  Specifically, health care facilities and professionals were provided with immunity in circumstances where:

(a) the health care facility or professional arranged or provided health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law;

(b) the act or omission occurred in the course of arranging for or providing health care services and the treatment of the individual was impacted by the health care facility’s or professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of New York State’s directives; and

(c) the health care facility or health care professional was arranging for or providing health care services in good faith.

Importantly, immunity was not provided when the harm or damages were caused by “an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the health care facility or health care professional.”

As of August 3, 2020, when Governor Cuomo signed the new law, which went into effect immediately upon its passage, a number of significant protections from liability were eliminated.  The new law remains in effect until the expiration of the COVID-19 emergency declaration.

Importantly, the new law narrowly redefines the “health care services” for which protections from liability are provided.  Specifically, under the new law, “health care services” means services provided by a health care facility or a health care professional that relate to: “(a) the diagnosis or treatment of COVID-19; or (b) the assessment or care of an individual as it relates to COVID-19, when such individual has a confirmed or suspected case of COVID-19.”

The new definition removes liability protection for health care facilities and health care professionals providing services related to the prevention of or arrangement of care for COVID-19.  Even more significantly, the amendment eliminates liability protections for services provided by health care facilities and professionals caring for other individuals during the period of the COVID-19 emergency declaration.

The amendment’s elimination of these protections opens the door to lawsuits against health care facilities (and health care professionals) for actions that are not involved in the direct diagnosis, treatment, assessment, or care of COVID-19.  For example, a facility whose staff is dedicated primarily to COVID-19 residents admitted to the facility in accordance with state law could be sued for an alleged failure to monitor a resident with decubitus ulcers even though such alleged failure was a result of the facility’s response to the pandemic.  Given the effective dates of the original and revised EDTPA, an injury would have to be shown to originate or worsen as a result of conduct that occurred before April 3, 2020 or after August 3, 2020 to be compensable.

Although the full implications of the rolled-back protections are yet to be seen, the elimination of the new law will likely lead to numerous lawsuits in New York.  In fact, plaintiffs’ attorneys are already testing the bounds of the liability protections in the courts.  On June 5, 2020, Zayas -V.-Our Lady Of Consolation Geriatric Care, INDEX NO. 509369/2020 was filed in Kings County.  The complaint alleges that a nursing home care facility failed to protect her mother from COVID-19 after her mother, who was admitted in January 2020, died.  The action was commenced “due to the Defendants’ abject and longstanding failure to maintain a system for preventing, identifying, reporting, investigating, and controlling infections and communicable diseases for all residents, staff, volunteers, visitors, and other individuals, and Defendants’ failure to adequately care for and protect its elderly and vulnerable residents, which led to the death of the decedent [  ] from COVID-19.”  The plaintiff further alleges that the nursing home “failed to take proper precautions to help prevent the development of infections prior to and leading up to the COVID-19 pandemic” and that as “a direct and foreseeable consequence” there were 39 COVID-related death count in the facility and an unknown number of deaths outside of the facility.  The plaintiff asserts that the nursing home care facility, amongst other things, violated Public Health Law sec. 2801-d,  and is liable for negligence, gross negligence, and wrongful death and “based upon its longstanding grossly negligent and reckless actions in failing to protect residents from harm.”

Both advocates for patients and providers claim victory in the final version of the revised law. Patient advocates tout resurrected means of redress for residents and their families while provider organizations celebrate their ability to prevent retroactive removal of the original EDTPA protections. For facilities dealing with the challenges of the pandemic while fulfilling their duties to all residents, managing the risk of increased exposure under the new law falls back to bedrock principles of documentation and resident and family engagement so as to ensure and establish that even if not immune, their actions were consistent the prevailing standard of care under the circumstances.

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Several states across the country have recently taken executive and/or legislative action that protects health care providers from civil and, in some cases, criminal liabilities arising from the COVID-19 pandemic. Among the most vulnerable providers covered by such protections are senior/assisted living and other long-term care facilities.

Because the scope of these protections and immunities varies by jurisdiction, Seyfarth attorneys have developed the 50-State Survey of Liability Protections for Senior Living and Long-Term Care Facilities to better assist organizations to identify potential issue areas. It is increasingly critical for health care providers to be fully aware of all legal risks and liabilities they may face in the midst of the pandemic, so they can take proper precautions to protect against future liability claims.

Please review the Survey for more information on the changes outlined in the Legal Update above.