By Michael Kelton

In an effort to protect nursing homes from liability claims arising out of their care and treatment of residents relating to COVID-19 illnesses, New York has granted qualified liability immunity to nursing homes and their administrators, board members, physicians and nurses.

Previously, Governor Cuomo had issued Executive Order 202.10, which, inter alia, provided qualified immunity to physicians, physician assistants, specialist assistants, nurse practitioners, licensed professional registered nurses and licensed practical nurses from civil liability for any injury or death alleged to have been sustained directly as a result of providing medical services in support of the State’s response to the COVID-19 outbreak. The immunity granted is “qualified” because it does not apply if it is established that such injury or death was caused by the “gross negligence” of such professional.

More recently, the New York Legislature and Governor Cuomo extended such limited immunity to nursing homes. The Emergency Disaster Treatment Protection Act (“EDTPA”), included in the State fiscal year 2021 final budget, will extend such qualified immunity to hospitals, nursing homes, administrators and board members. The bill grants such immunity for civil and criminal liability for decisions, acts and omissions occurring from the beginning of Governor Cuomo’s emergency declaration on March 7, 2020 through its expiration, and will specifically cover liability stemming form the care and treatment of individuals with and without COVID-19. Under the EDTPA, nursing homes will not be subject to either criminal or civil liability for injury to a patient or resident for services rendered during the emergency declaration, as long as the act or omission occurred in the course of arranging for or providing health care services in response to or resulting from the COVID-19 outbreak. The exception to this immunity is for acts or omissions which cause injury or death and which were the result of willful or intentional criminal conduct, gross negligence, recklessness or intentional infliction of harm.

It is still possible that injury or death lawsuits will be brought, with plaintiffs asserting that a nursing home, its administrators or staff, acted with “gross negligence” or “recklessness,” in order to circumvent the immunity provided by the bill. If so, it remains to be seen whether and to what extent the courts will be diligent in scrutinizing such claims to ascertain whether they are fabrications crafted only to avoid the immunity provided by the law.

For more information please contact Michael S. Kelton, Esq., Randy S. Faust, Esq., Mark A. Longo, Esq. or Anthony Genovesi, Esq. or call our Brooklyn office at (718) 215-5300.