The statute discussed in the post below post was amended on August 3, 2020. For information on the amendments to the statute, see our new post from August 7, 2020: What Does New York’s Amended COVID–19 Immunity Law Mean For Providers? This new post was written by Steven R Gersz. To be clear, you need to read both the post below and our post of August 7, 2020 in order to understand the current state of the law. While all health care providers in New York are struggling to meet the needs of their patients, Governor Cuomo signed a new law that grants them immunity from most civil and criminal liability so they can focus on the job at hand. This new statute is much broader than Governor Cuomo’s Executive Order on March 23, 2020 that extended qualified immunity only to providers treating COVID-19 patients. [1]
During the pandemic, resources within all health care facilities are really challenged. The Emergency or Disaster Treatment Protection Act [2] (“EDTPA”) recognizes that all patients must be treated as if they are COVID-19 positive until proven otherwise, putting an enormous strain on the whole system. There are not enough health care providers and they are all being asked to work long hours, under very difficult circumstances, reaching beyond their comfort levels with shortages of personal protective equipment (PPE), often. This law recognizes that medical professionals are doing their best under these difficult circumstances. It seeks to cut them some slack. It is designed to encourage health professionals to use their best judgement and to act in good faith and protects them from the missteps that inevitably flow from the lack of sleep, lack of resources and lack of good communications.
The EDTPA extends immunity to nearly all health care facilities and nearly all health care professionals regardless of whether they are engaged in treating COVID-19 patients so long as they are involved, in some manner, in the response to the COVID-19 outbreak, and they act in good faith. The new law is intended to promote the public health, safety, and welfare of all New York citizens by allowing the health care professionals to expand their reach as much as possible. The law applies from March 7, 2020 until the end of the state of emergency.[3]
What is the Scope of Immunity Under the EDTPA?
The new law grants qualified immunity for both civil and criminal claims of harm if:
The health care facility or professional (see list below) was arranging for or providing health care services pursuant to a COVID-19 emergency rule or as required by law, and
The alleged negligence or omission occurs
a. While arranging for health care services or treatments[4], or
b. While deciding the response to be taken to the COVID-19 outbreak (per the state’s directives), and
3. The facility or professional is acting in good faith, and
4. The health care professional or facility did not act willfully, intentionally or in a manner that constitutes criminal misconduct, gross negligence[5], reckless misconduct or intentional infliction of harm.
Who is Immune from Liability Under EDTPA?
Any of the following health care professionals working in New York State during the state of emergency (regardless of whether they are employees, independent contractors, volunteers or agents of other providers or facilities):
Physicians
Physician Assistants
Registered Special Assistants
Pharmacists
Nurses and Nurse Practitioners
Midwives
Psychologists
Social Workers
Mental Health Practitioners, including licensed mental health counselors, marriage and family counselors, creative arts therapists and psychoanalysts
Respiratory therapists and respiratory therapy technicians
Clinical Laboratory Technicians
Nurse attendants or certified nursing aides, including those in certified training programs
Certified Emergency Medical Technicians (EMT)
Home Care Services Workers
Health care workers providing services under the COVID-19 emergency rule (including providers who were brought out of retirement or who are licensed in other states and working in New York under the state of emergency), and
Health Care Facility Administrators, Executives, Supervisors, Board Members, Trustees, and others responsible for directing and supervising or managing a health care facility or serving in any of those roles.
What Facilities are Immune from Liability Under EDTPA?
Any Article 28 facility including hospitals, nursing homes, public health centers, diagnostic centers, treatment centers, dental clinics, skilled nursing rehabilitation centers, residential health care facilities, maternity hospitals, midwifery birthing centers and residential psychiatric facilities, and
Any Article 16 mental hygiene facilities including residential and outpatient facilities for the care of persons with developmental disabilities and family care homes, and
Any Article 31 mental hygiene facilities including residential homes or institutions for the care, custody of treatment of the mentally disabled.
How Does this Law Apply to You?
If you are a health professional or you volunteer on the board of directors for a health care facility, you probably wonder if you could be liable for any of the adverse outcomes that many are experiencing.
If you are afraid that you or your facility has made a mistake that resulted in harm to someone, there are three basic questions to ask yourself to help determine if this law might offer you immunity from liability:
Are you among the listed professionals or volunteers listed above?
Were you involved in either arranging for health care services during the state of emergency or deciding the response to be taken to the COVID-19 outbreak when the mistake happened?
Did you act in good faith?
If you can answer “yes” to each of these questions, then you are likely immune from civil and criminal liability under this law.
The law is general enough that you do not have to be treating someone with COVID-19 to be immune from liability; you only need to be involved in the care of someone who presented during the emergency declaration.
Examples and Models of Immunity
There are some situations where it is easy to see how this law is likely to insulate providers and facilities from liability.
Failures to isolate infected staff or mistakes in the use of PPE
For example, a nurse who did not know that she had COVID-19 because she had no symptoms should not be liable for transmitting the virus where all indicators suggest that she was acting in good faith. Even if this nurse transmitted the virus to a resident because she forgot to raise her mask over her face when she rushed to his bedside to keep him from falling to the floor, she should not be liable.
How about a nurse’s aide who forgets to remove her shoe coverings as she moves from an isolation unit to a non-COVID unit? It seems logical to apply immunity to these kinds of mistakes because the evidence suggests that the actors were not malicious or grossly negligent.
Transmission of virus on hospital equipment
What if the patient being treated does not have COVID-19? Imagine that a new patient in a hospital needs a ventilator and there is only one ventilator available. If the new patient develops COVID-19 from the ventilator and dies, is someone liable for their loss?
This law should immunize the doctor who ordered the new patient onto the inadequately cleaned ventilator from claims of medical malpractice. In addition, the respiratory therapists, nurses and aides who were all involved in treating the new patient and who all failed to prevent the transmission of COVID-19 to the new patient should also be immune from liability so long as they all acted in good faith.
What about the infection control team that cleaned the ventilator? The law is not specific to these professionals, but it stands to reason that the legislature meant to include these members of the team in the immunity. After all, they all work for the facility that was treating the patient who died during the state of emergency and the facility is immune.
Completing state forms and reports
Similarly, picture a supervising nurse in a nursing home who has to complete over a dozen 11-page reports, every day, that list all the contacts that every COVID-19 positive resident had with every staff member or other resident every time a new COVID-19 diagnosis is identified in the home. Let’s assume that in the fog of fatigue, she makes a mistake in one of her reports. She forgets to list one staff member whom she did not realize had contact with the new COVID-19 case. If this exposed staff member is not isolated and causes further spread of the virus to other residents, is the supervising nurse immune from civil or criminal prosecution? Under this law, the supervising nurse and the nursing home should both be immune from liability, so long as both were acting in good faith, without malice toward any individual.
Most of these cases will be dismissed because the courts will apply this new immunity law to protect the health care providers from liability.
But this does not mean that you cannot be sued. You can expect that after the epidemic has run its course, and the state of emergency has been lifted, we will see lots and lots of lawsuits. We already see advertising by the lawyers trolling for these cases.
People will argue that their loved one died needlessly. People will claim that resources that are routinely made available to patients under normal circumstances were not offered to them.
The role of recklessness, gross negligence, staffing shortages and resource limitations
The hardest cases to manage will be those where the plaintiffs allege gross negligence. We can expect them to do this in almost every case. They will do so to prevent the dismissal of their cases, not because the allegations are true.
They will argue that the risk of death from a failure to properly wear masks, or sanitize spaces or isolate patients, or to account for all the contacts of a COVID-19 patient elevates these failures to recklessness or gross negligence.
For example, is it reckless if the Education Director does not have enough time to train all the staff on every shift how to properly use new masks before they are put into use throughout the facility?
What if a nursing home does not have any cases of COVID-19, but a resident dies because of a delay in sending the resident to the hospital when there were not enough masks to protect the resident during transport? Is this delay gross negligence or is it excused by the new immunity statute?
The statute specifically states that actions or decisions that result from shortages in staffing or resources will not be considered as either gross negligence or criminal/reckless misconduct. A great many mistakes are going to be associated, in some way, with staff and resource shortages.
Medical professionals are doing much more than just their own job. Because of staffing shortages, people are covering larger numbers of patients for broader needs than we are used to seeing. Medical professionals are working longer hours and are not sleeping well in between shifts. The supplies of PPE are so erratic that everyone is trying to learn how to properly use different equipment every week. Naturally, people are going to experience memory lapses and unintended mistakes. Experts agree that most medical errors occur when the providers are fatigued, stretched beyond their comfort zones, or trying to process too much information at the same time. All these factors are present now.
Yet, every failure to properly use PPE risks infection to other patients. Every failure to properly account for contacts with COVID-19 positive patients risks further transmission of the virus. Every transmission of the disease risks death for the infected.
These are the kinds of questions that Courts may be asked to decide when considering the limits of the new April 2020 immunity law. The courts will have to struggle with the definitions of gross negligence vs ordinary negligence in the context of extreme conditions under which we asked our health care providers to keep working despite the daily toll that it is taking on themselves and their families.
Key Takeaways: Notification, Communication, Documentation
If you find yourself struggling to meet demands, here are a few things that you can do now to insulate yourself later.
Notify your managers whenever you feel that you need more help.
Communicate with team members regularly to help remind each other of protocol changes.
Communicate in daily huddles among leadership to address supply and staffing shortages, policy changes and new education.
Document the roll-out of new policies and procedures.
Document or log the daily changes in PPE and personnel.
Every shortfall experienced in staffing and all the scrambling to re-stock PPE or sanitization resources could be very valuable evidence to help defend the facility and the staff when claims start to pop up. All the challenges you are experiencing now will be difficult to remember when the fog of this emergency has lifted.
To our readers who are not health providers, there is something else to think about. Epidemics have a way of repeating themselves. The viruses tend to be resilient and come back around. If we want our health care providers to be there for us the next time this happens, we must honor our promise to protect them this time around.
If you have any questions, please contact us here or at 585-258-2800.
You can view more COVID-19-related posts in our COVID-19 Resource Area here.
[1] UK Blog “Governor Cuomo Takes Action to Expand the Pool of Health Care Practitioners Amid COVID-19 Crisis” March 27, 2020
[3] The EDTPA applies retroactively to March 7, 2020, when the state of emergency was first declared (more than 2 weeks prior to Cuomo’s Executive Order 202.10) and remains in effect until the governor declares the end of the state of emergency.
[4] The health care services mean those services that relate to (1) the diagnosis, prevention or treatment of COVID-19; or (2) the assessment or care of an individual with a confirmed or suspected diagnosis of COVID-19; or (3) the care of any individual who presents to a health care facility or professional during the period of the emergency declaration.
[5] While writing this law the legislature was aware that almost every facility in the state is operating under extreme staffing limitations due to the spread of the virus among staff and the lack of available temporary staff. Consequently, staffing shortages cannot be the basis for asserting gross negligence.