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April 27, 2020

Will Statutory Immunity Hold up for Health Care Providers Giving COVID-19 Treatments?

Health care providers in New York State benefit from having immunity in treating individuals during the COVID-19 pandemic pursuant to statutes and executive orders. While the state’s new Emergency or Disaster Treatment Protection Act (EDTPA) provides some welcome measure of immunity to certain health care providers from potential liability arising from the care and treatment of individuals with COVID-19, the statute is far from a silver bullet of protection for providers.

For example, immunity does not apply if 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, which can be intensely factual standards. Further, under Executive Order 202.10, unless the provider’s conduct constitutes gross negligence, providers such as physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses, and licensed practical nurses are immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by a medical professional in the course of providing medical services in support of the state’s response to COVID-19.

As COVID-19 further develops, so do Monday-morning “hindsight” disputes regarding how health care providers and their employers have handled this pandemic. Tragic examples are quickly emerging from the front lines and are already testing the boundaries of this immunity within our legal system.

On April 10, the US Department of Justice (DOJ) and the US Attorney’s Office announced the investigation of Soldier’s Home, a state-run facility located in Holyoke, Massachusetts, where approximately 25 veterans have died since March. Eighteen of those deceased veterans tested positive for COVID-19. The Massachusetts Attorney General’s Office and the Governor’s Office have also opened investigations into what went wrong at Soldier’s Home and why. In essence, these investigations seek to answer whether the rights of the veteran residents were violated by way of management’s failure to provide adequate medical care both generally and during the COVID-19 outbreak.

In some states, such as New York, nursing home liability statutes can provide an independent standard of liability. Under Public Health Law § 2801-d, residential health care facilities may be held liable for depriving a patient of any right or benefit created or established for the wellbeing of the patient, and where conduct is determined to be willful and reckless, punitive damages may be awarded. These rights or benefits can be conferred to the patient by state or federal code, rule, or regulation or by the terms of the admission agreement between the facility and patient. Additionally, these rights generally may not be superseded by state and federal attempts to confer limited immunity.

In the case of the EDTPA, limited immunity is only triggered as long as a health care facility or professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule, including an executive order, during the COVID-19 emergency declaration, and the act or omission is taken in response to the outbreak. 

While the nursing home and long-term care populations have been gravely impacted by COVID-19, providers have also been the subject of broader civil and criminal enforcement efforts by the DOJ, such as the National Nursing Home Initiative. The DOJ announced the initiative will “pursue nursing homes that provide grossly substandard care to their residents.”

Among the factors to be reviewed by the DOJ in determining the “most problematic nursing homes” include homes that “consistently fail to provide adequate nursing staff to care for their residents, fail to adhere to basic protocols of hygiene and infection control, fail to provide their residents with enough food to eat so that they become emaciated and weak, withhold pain medication, or use physical or chemical restraints to restrain or otherwise sedate their residents.”

On Thursday, NYS Governor Andrew Cuomo announced that the state intends to launch a joint investigation by the Department of Health and Attorney General’s Office into whether nursing homes are complying with state and federal safety orders during COVID-19 due to the deaths of over 3,500 residents. A nursing home’s failure to comply with safety directives may result in fines of $10,000 per violation or a revocation of its operating license. Given the significant investigatory ramp up at the state and federal levels, how the EDTPA’s express immunity provisions will reconcile with those efforts as well as the Public Health Law’s private right of action remains to be seen.

The immunity standards of gross negligence are not unfamiliar concepts of negligence law. New York State’s Civil Practice Law and Rules (CPLR) makes a defendant who acts recklessly jointly liable for all damages in a personal injury action. There is ample precedent for what constitutes recklessness—a standard that has been progressively eroded to one that “evinces a high degree of moral turpitude” and “demonstrates such wanton dishonesty as to imply a criminal indifference to civil obligations”1 or “reckless or wanton disregard of safety or rights.”2 If the provisions of COVID-19-driven immunity suffer a similar fate in the court system, provider liability for COVID-19-related injury may prove less expansive than originally intended.

In fact, NYS courts have already seen a glimpse of the types of legally actionable claims against employers and state agencies as a result of COVID-19. Recent examples include actions filed by health care professionals against the state as well as hospitals alleging they were not provided adequate equipment, training, and education amid the pandemic and hospitals failed to take steps necessary to assure employee health and safety.

On Monday, the New York State Nurses Association filed three lawsuits in state and federal courts against the NYS Department of Health (DOH), Montefiore Hospital, and Westchester County Health Care Corporation claiming the DOH neglected its statutory duties and exacerbated rather than mitigated the ongoing crisis. It alleged that nurses were forced to work while experiencing symptoms or awaiting COVID-19 test results—or not being provided with testing at all—and cited personal protective equipment rationing by the hospitals.

Before society has officially entered a world following COVID-19, a number of areas for litigation have already been identified. Barclay Damon is ready to assist providers in navigating these unique legal challenges.

1 Rocanova v. Equitable Life Assur. Soc'y, 83 NY 2d 603 (1994).

2 Sharapata v. Islip, 56 NY 2d 332 (1982).

If you have any questions regarding the content of this alert, please contact Linda Clark, Health Care Controversies Team leader, at lclark@barclaydamon.com; Mary Connolly, associate, at mconnolly@barclaydamon.com; or another member of the firm’s Health Care Controversies Team.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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