Every elder law and personal injury attorney should have a working knowledge of the reach of the COVID immunity statutes and Executive Orders which immunize health care workers, hospitals and nursing homes from personal injury liability for negligence during the COVID crisis.  The immunity shield was enacted in response to the tremendous stresses placed on the health care system from the COVID pandemic.  The immunity shield effectively insulates health care workers from most malpractice and negligence lawsuits if the negligence occurred after March 23, 2020 and before August 3, 2020.

At the New York State level, there were three immunity grants.  First, on March 23, 2020, Governor Cuomo issued Executive Order 202.10, which temporarily immunized health care professionals for civil liability causing injury or death, if they were “providing medical services in support of the State’s response to the COVID outbreak.” The immunity did not insulate the worker from claims of “gross negligence.”  This broad protection was applicable to any act of negligence, whether the particular patient involved had COVID or not, as long as the healthcare worker demonstrated that he or she was also supplying services in response to the COVID Outbreak.

Next, on April 6, 2020, New York passed the Emergency Disaster Treatment Act which broadly extended the immunity to include hospitals and nursing homes.  The immunity included any “actions and omissions” performed in the course of arranging for or providing health care services if the health care facility or health care worker’s decisions were “impacted by the response to the COVID crisis” and the actions or omissions were in good faith.  Once again, grossly negligent actions were excepted from the immunity.  Since virtually every hospital and nursing home was handling COVID cases, the immunity arguably covered any act of negligence, whether particularly related to the treatment of a COVID patient or not.

Finally, on July 23, 2020, the New York State legislature became reticent about the scope of the immunity shield and statutorily trimmed the Emergency Disaster Treatment Act .  Effective August 3, 2020, immunity was only afforded for good faith acts or omissions which pertain to the diagnosis or treatment of COVID 19, or the care and assessment of a patient with COVID 19.   That is, after August 3, 2020, the immunity only covered acts specifically related to the care of a COVID 19 patient.  Other acts of negligence were no longer protected. Significantly, the statute was not made retroactive.

So, in New York, between March 23, 2020 and August 3, 2020, healthcare workers have an almost unlimited immunity shield for negligent acts or omissions, if they were in some manner involved in the campaign to fight the COVID pandemic at the time.  After August 3, 2020, the immunity only extends to the actual care and treatment of a COVID patient or a potential COVID patient.

As of the writing of this note (March 18, 2021), the NYS Legislature has passed a Bill to remove COVID immunities for health care workers entirely, but that Bill it is not yet law.

On the federal level, on March 17, 2020 the Department of Health and Human Services used existing provisions of the Public Readiness and Emergency Preparedness Act (passed in 2005) to declare COVID a “public emergency.”  That declaration triggered a temporary immunity for health care workers with respect to all claims under state and federal law arising out of the administration of “countermeasures” used to fight to the pandemic.  “Covered countermeasures” are defined in the statute, but basically include drugs, products, and technology intended to diagnose, treat or mitigate the pandemic.  Covered persons are the people who make or administer the countermeasures, including health care professionals.  The statute is lengthy and detailed, and largely deals with the development of drugs and other medical countermeasures to fight the pandemic, but nonetheless includes an immunity clause for frontline health care workers managing COVID patients using pandemic drugs or technology.  The federal immunity must be accounted for when considering a nursing home negligence or medical malpractice case in the pandemic era.  There is an exception for “willful misconduct,” but even then, the injured victim can only bring the claim in the federal court in the District of Columbia. The immunity was made retroactive to February 4, 2020 and the immunity extends to October 1, 2024.  Plaintiff’s personal injury attorneys should expect this statute to be raised as a defense in addition to the New York State Public Readiness and Emergency Preparedness Act if the injured victim was a COVID patient.

These immunity statutes effectively preclude ordinary negligence and malpractice cases against health care facilities and health care professionals if the injured party was a COVID patient.  After August 3, 2020, patients injured at nursing homes and hospitals who were not themselves COVID positive, can arguably bypass the immunity and bring claims for their injuries.  In the immediate future, there is good reason to believe the State Senate will pass, and the Governor will sign, a bill extinguishing the immunity entirely.

 

Michael Glass

Christopher Glass

 

Please note that as of April 6th, 2021 there has been significant changes that has repealed this immunity. https://www.rglzlaw.com/covid19_lawsuits/