New York, N.Y. (March 5, 2024)- On February 14, 2024, the New York Supreme Court, Appellate Division, First Department in Hasan v. Terrace Acquisitions II, LLC, 2024 N.Y. App. Div. LEXIS 805 (1st Dept. 2024) upheld the dismissal of a case alleging a failure to diagnose, treat, and prevent COVID-19 in a nursing home under New York's now-repealed Emergency or Disaster Treatment Protection Act ("EDTPA") (formerly Public Health Law 3082). The First Department now joins the Second, Third, and Fourth Departments in extending immunity from civil liability to any person or entity providing healthcare services related to COVID-19 between March 7, 2020 and April 6, 2021.
In Hasan, the plaintiff's decedent contracted COVID-19 in April 2020, while a resident at the defendant's nursing home, and passed away in May 2020. The plaintiff alleged negligence, gross negligence, wrongful death, and violations of the decedent's rights under New York's Public Health Law. The defendant filed a pre-answer motion to dismiss, which the trial court granted. Affirming the trial court, the First Department held that although the New York Legislature repealed the EDTPA on April 6, 2021, the repeal was not meant to apply retroactively. Thus, the EDTPA provides nursing homes and other healthcare facilities and professionals immunity from liability arising from the diagnosis or treatment of COVID-19 between March 7, 2020 and April 6, 2021. The court noted the EDTPA's immunity does not extend to claims for gross negligence, but nonetheless dismissed the plaintiff's cause of action given the evidence the defendant proffered in its motion, coupled with the New York Department of Health's policy requiring nursing homes to admit or readmit COVID-19-positive residents.
The Fourth Department in Ruth v. Elderwood at Amherst, 209 A.D.3d 1281 (4th Dept. 2022) was the first appellate court in New York to reach this conclusion on October 7, 2022. The Third Department in Whitehead v. Pine Haven Operating LLC, 222 A.D.3d 104 (3d Dept. 2023) reached the same conclusion on November 30, 2023, as did the Second Department in Martinez v. NYC Health & Hosps. Corp., 223 A.D.3d 731 (2d Dept. 2024) on January 17, 2024.
Litigants representing long-term healthcare facilities or other healthcare providers in these types of cases should be mindful of the potential for early dismissal of the pleadings. The litigant should obtain the facility/provider's pre-COVID-19 policies and procedures, policies and procedures during the pandemic, publicly accessible records from the Department of Health, and the decedent's medical records to establish (1) the defendant provided the decedent with healthcare services under the COVID-19 emergency orders when the decedent was infected with COVID-19; (2) prior to infection, the defendant provided the decedent with healthcare services in accordance with applicable law; (3) the care provided during the pandemic was impacted by the defendant's decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives; and (4) the defendant provided care to the decedent in good faith.
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