Today, New York's Attorney General Letitia James issued a report to the effect that nursing home deaths related to COVID-19 were significantly underreported, potentially by as much as 50%. You can read the report here.
At the height of the pandemic – which it feels like we are still in, but we're talking about March and April 2020 – Governor Cuomo issued a number of executive orders in an attempt to combat the coronavirus. One of those orders, EO 202.10 (March 23, 2020), granted broad immunity to hospitals and nursing homes treating COVID-19 patients for malpractice and negligence claims. Specifically, the order provided that “all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses 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.” The order also relieved health care providers from liability for failure to comply with record keeping requirements.
The purpose of this order was ostensibly to allow overburdened hospitals treating COVID-19 patients from having to worry about liability or deal with newly filed lawsuits (or notices of claim for city or public hospitals) in the midst of a crisis. However, patient advocates and plaintiff's attorneys were concerned about the order's over-breadth given its application to care of non-COVID patients. For example, just because a hospital has some COVID patients, why would that relieve physicians elsewhere in the hospital from liability for malpractice on a non-COVID patient?
Because of this, on August 3, 2020, Governor Cuomo signed a bill reversing much of this immunity so that it only applies to medical providers actually treating or diagnosing COVID-19 patients and where actions are impacted by the COVID-19 response and relevant state directives. You can read the law, S8835, here. The law is prospective meaning it applies from its effective date forward. Health care providers would still enjoy immunity under the prior Executive Order for acts committed prior to August 3, 2020. (We find this troubling for care given to non-COVID patients during this time period, who would not have recourse in ordinary malpractice or negligence).
So what does this mean in light of the AG's report on the significant number of nursing home COVID-19 deaths? As investigations continue and more information comes to light, we will likely start to see litigation against nursing homes for failing to keep their residents safe from COVID-19, as compared to actual treatment of COVID patients.
This post is not intended to be relied on as legal advice. Every situation is dependent on its own set of facts, and these laws and orders are new and have not been thoroughly fleshed out in the courts.
If you believe you or a loved one was the victim of medical malpractice or nursing home negligence during the pandemic, give us a call or complete an intake form on our website. We are happy to see if we can help.