New York, N.Y. (October 17, 2022) - On October 7, 2022, the Appellate Division, Fourth Judicial Department concluded that the statute repealing New York's Emergency or Disaster Treatment Protection Act (the EDTPA) is to be given prospective application and not retroactive application, as has been hotly contested by plaintiffs' firms in the midst of a recent glut of nursing home litigation cases. This will likely significantly impact those COVID-19 litigation claims being brought against nursing homes recently in the Empire State by plaintiffs arguing that the repeal of EDTPA was meant to be retroactive, despite not having any clear indication in the legislative history of the repeal.
Background
In April 2020, then-Governor Cuomo signed executive orders declaring a state of emergency in New York. Among other things, these orders provided immunity for healthcare workers from civil liability – except in cases of gross negligence – 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. (See Executive Order [A. Cuomo] No. 202.10 [9 NYCRR 8.202.21]). Shortly thereafter, the legislature enacted the EDPTA, which provided temporary immunity to healthcare and long-term care facilities and healthcare professionals from claims related to the care of individuals with COVID-19. (See NY PHL former §§ 3080-3082). This immunity was in effect retroactively from March 7, 2020 through the expiration of New York's state of emergency. Immunity under the statute was limited, however, and did not apply to damages or injuries that were caused due to willful or intentional criminal misconduct, recklessness, or gross negligence.
This exemption applied if a) the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; b) the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the state's directives; and c) the services were arranged or provided in good faith. (See PHL former § 3082[1]).
In August 2020, changes to the immunity statute included the removal of various immunity protections, including those protections related to "arranging for" healthcare services and narrowing the immunity to apply specifically to the assessment or care of an individual as it relates to COVID-19.
Repeal
On April 7, 2021, the Governor signed legislation that fully repealed Art. 30 of the Public Health Law, the EDTPA "with the intent of holding health care facilities, administrators, and executives accountable for harm and damages incurred." There was no reference on the face of the bill as to whether the repeal was meant to apply retroactively and merely stated that this "act shall take effect immediately". (See A.03397/S.5177; L 2021, ch 96, §§ 1-2). Since the repeal, plaintiffs' firms have filed hundreds of nursing home lawsuits alleging, among other things, negligence related to COVID-19 going back to the beginning of the pandemic, when the EDTPA was in place. These allegations include but are not limited to: failure to enforce social distancing; failure to ensure all residents wear face coverings; failure to ensure appropriate staffing levels; failure to timely restrict all visitors; failure to screen COVID-19 symptoms resulting in the exposure and spread of COVID-19, resulting in deprivation of dignity, pain and suffering, and, in some cases, death. In many of these cases, the defendants have moved to dismiss based on this immunity. Others have moved for removal to federal court, but the federal district courts have been inconsistent on this point, with the Eastern District remanding these cases back to state courts.
Ruth v. Elderwood at Amherst
In a recent Erie County case, Ruth v. Elderwood at Amherst, the defendants similarly moved to dismiss based on immunity and the lower court granted the motion. The plaintiff appealed, and the Fourth Department affirmed finding that the lower court properly determined that the defendants were entitled to immunity conferred by the EDTPA. 2022 NY Slip Op 05637 (App. Div.).
The Appellate Division found that a review of the legislative floor debates supported the conclusion that the legislature intended the repeal to apply prospectively only, rather than retroactively. The court specifically cited concerns from Assembly members that retroactive application of the repeal would expose frontline healthcare workers to liability for treatment they provided at the beginning of the pandemic, when far less was known about how to provide appropriate treatment for the novel virus and workers were providing care under extraordinary circumstances. (See NY Assembly Debate on Assembly Bill A3397, Mar. 4, 2021).
The court further found that nothing in the repeal contained an express statement requiring retroactive application, and that the indication of immediacy in application of the repeal had no bearing on whether the repeal was meant to apply retroactively.
Impact
It is unclear whether the plaintiff in the Ruth matter will file an appeal to the state's highest court, the New York Court of Appeals. In February 2022, plaintiffs' firm Napoli Shkolnik filed a motion for coordination, directing pre-trial coordination in Supreme Court, Kings County (Brooklyn), for these types of actions. This motion was granted in August 2022. Since then, New York long-term care defense firms have coordinated on a defense strategy and have moved to renew and re-argue the consolidation motion. The defendants have now requested that the court consider the instant decision, and further argued that this precedent must be followed by the courts of this state and considered by the Litigation Coordinating Panel for nursing home COVID-19 cases.
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