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March 25, 2020

COVID-19: New NYS Executive Order Limits Medical Professionals' Civil Liability

On Monday, Governor Andrew Cuomo issued Executive Order 202.10, outlining directives for potential civil liability faced by medical professionals related to COVID-19 medical treatment. These directives follow Executive Order 202, which was published on March 7 and declared a NYS disaster emergency in response to the COVID-19 pandemic. Order 202.10 modifies Education Law §§ 6527(2), 6545, and 6909(1) to the extent necessary to grant medical professionals immunity from civil liability arising out of treatment related COVID-19 unless it is established that the civil liability amounts to gross negligence. 

The order notably enumerates the following medical professionals as immune from ordinary negligence: 

  • Physicians
  • Physician assistants
  • Specialist assistants
  • Nurse practitioners
  • Licensed registered professional nurses
  • Licensed practical nurses

This qualified immunity extends to any injury or death alleged to have been sustained as a result of any act or omission on the part of a medical professional. 

As discussed in an earlier legal alert from our health care attorneys, the order also modifies associated provisions of the Education Law, Public Health Law, and the NY Codes, Rules, and Regulations and relaxes supervisory, licensing, and recordkeeping mandates. Medical professionals are similarly granted immunity from civil or criminal liability related to these modifications.

The application of these directives remains to be seen. It is anticipated, however, that the immunity granted by this order will be challenged in future medical malpractice litigation. Executive Order 202.10 is in effect until April 22. 

Barclay Damon’s professional liability and torts and products liability defense attorneys will monitor extensions and further modifications to this order and remain prepared to assist clients with legal changes ushered in by the COVID-19 outbreak.

If you have any questions regarding the content of this alert, please contact Jessica Tariq, associate, at jtariq@barclaydamon.com or another member of the firm’s Professional Liability or Torts & Products Liability Defense Practice Areas.

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