COVID-19 Response: NYS Legislature Trims Back Emergency Disaster Treatment Protection Act, Exposing Liability for Non-COVID-19 Treatment

New York, N.Y. (July 27, 2020) - On July 23, 2020, the New York State legislature voted to narrow the scope of the Emergency Disaster Treatment Protection Act (the Act), exposing nursing homes and other medical providers to liability for treatment unrelated to COVID-19.

The Act, codified in New York Public Health Law 30-D (Section 3082) since April 2, 2020, grants healthcare facilities (which includes hospitals, nursing homes, facilities listed under Article 28 of the Public Health Law, Article 16 of the Mental Hygiene Law, and Article 31 of the Mental Hygiene Law, and those under Governor Cuomo’s Emergency Rule) “immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained because of an act or omission while arranging for or providing healthcare services” during the COVID-19 pandemic.

However, critics of the Act, such as Assembly Member Ron Kim (D-Queens) argue that it over-protects healthcare facilities from negligence and neglect of patients. The Act does not protect facilities or providers from willful or intentional criminal misconduct, gross negligence, reckless misconduct or intentional infliction of harm.

Under the amended legislation, the Act will no longer shield healthcare facilities from liability for negligent treatment of patients, so long as the treatment was unrelated to the pandemic. For example, the amendment would permit a patient to bring a medical malpractice action against a facility for negligent post-operative treatment following cardiac surgery, or for a failure to diagnose cancer.

Proponents of the reform, such as Rep. Kim, have pushed for a complete repeal of the Act, as there are over 6,300 confirmed or presumed COVID-19-related deaths in nursing homes across New York to date.

If Governor Cuomo signs this legislation into law, we expect to see a flood of new medical malpractice and healthcare liability cases against facilities and providers throughout the state. As the pandemic rages on and COVID-19 positive patients continue to inundate New York’s healthcare facilities, the courts will have to parse out a bright line rule to determine whether treatment was in fact “unrelated” to the pandemic.

For more information on this legislation, contact the authors of this alert. Visit our COVID-19 Response Resource Center for additional alerts on the many areas of the law impacted by the pandemic.

Authors:

Karen L. Campbell, Partner

Corey Shulman, Associate