Governor Cuomo Issues Executive Order Granting Qualified Immunity to Medical Professionals Responding to the COVID-19 Outbreak
On March 23, 2020, Governor Cuomo signed Executive Order No. 202.10, which temporarily suspends and modifies numerous laws and regulations in order to increase the capacity of New York’s healthcare system to respond to the COVID-19 outbreak.
In addition to numerous revisions intended to increase the number of medical professionals able to provide patient care, Executive Order 202.10 also provides a qualified immunity from malpractice liability for professionals responding to the outbreak. Specifically, it temporarily revises Education Law Sections 6527(2), 6545, and 6909(1) to provide that all such professionals “shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional.”
Notably, nothing in Executive Order 202.10 limits the scope of this qualified immunity to medical professionals treating COVID-19 patients. Indeed, it has as its stated purpose, both “ensuring the State of New York has adequate bed capacity, supplies, and providers to treat patients affected with COVID-19, as well as patients afflicted with other maladies,” and “eliminating any obstacles to the provision of supplies and medical treatment necessary to ensure the New York healthcare system has adequate capacity to provide care to all those who need it.” Moreover, it specifically applies to acts or omissions which occur “in the course of providing medical services in support of the State’s response to the COVID-19 outbreak.” Thus, for example, a provider who prioritizes a COVID-19 patient over a non-COVID-19 patient would appear to be entitled to qualified immunity in a malpractice action by the latter.
Executive Order 202.10 will remain in effect until April 22, 2020, unless it is extended by Governor Cuomo.
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