Legislative Alert: A Step Backward

by | Aug 6, 2020 | Medical Malpractice | 0 comments

By: Thomas A. Mobilia and Barbara D. Goldberg

In April 2020, as COVID-19 infections and deaths were surging exponentially, the New York Legislature enacted the Emergency or Disaster Treatment Protection Act (EDTPA). That legislation conferred broad immunity on health care facilities and health care professionals treating, or arranging for treatment of COVID-19 patients, as well as “the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration.”

Harm or damages resulting from “willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm” were excluded; however, health care providers were otherwise shielded from “any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” in response to the COVID-19 emergency, provided certain specified conditions were met.

The Legislature has now taken an unfortunate step backward by limiting the immunity created by Article 30-D to health care professionals providing diagnosis and treatment “directly to confirmed and suspected COVID-19 patients.” Senate Bill 8835, which has now been signed into law by Governor Cuomo, amends Article 30-D to remove the “prevention” of COVID-19 from the definition of health care services. In addition, the bill removes the care and treatment of patients not suffering from COVID-19 from the definition of “health care services” covered by Article 30-D.

As a result, a health care provider called upon to treat patients outside his or her area of specialty will no longer be afforded the protections of Article 30-D when treating non-COVID patients, even if the reason the health care professional is put in that position is because of staffing shortages resulting from COVID-19!

The Sponsor’s Memo describes the bill as an attempt “to move forward from the uncertainty that faced the state from the impact of COVID-19 in late March.” The Memo also states that it is “only a first step, however, and we must take further action to hold to account any malfeasance that occurred during the height of the COVID-19 crisis.”

The new legislation applies prospectively. Fortunately, therefore, it does not affect health care providers who treated patients at the height of the COVID-19 outbreak in the spring. However, this bill, and any “further action” that is taken, may have significant repercussions for health care providers if there is a second wave or resurgence of COVID-19 in the fall.

By Thomas A. Mobilia, Esq. and Barbara D. Goldberg, Esq.

Legislative Alert is published by the Appellate Practice Group of Martin Clearwater & Bell LLP to inform clients about significant legal developments. This publication is intended for general information only and should not be used for specific action without obtaining legal advice. If you would like further information about the services of Martin Clearwater & Bell LLP, please contact Thomas A. Mobilia, at (212) 916-0991 or mobilt@mcblaw.com or Barbara D. Goldberg, Head of the Appellate Practice Group, at (212) 916-0989 or goldbb@mcblaw.com.