On August 3, 2020, Governor Cuomo signed legislation limiting civil liability protections afforded to health care facilities and professionals during the COVID-19 pandemic under the “Emergency or Disaster Treatment Protection Act.” See Bill S8835/A10840.
Originally, this Act was an Executive Order that had been codified by the legislature in April. The Act granted immunity from liability for certain health care facilities or health care professionals, as defined in Section 3081(3)–(4) of the Public Health Law, for harm or damages which may have occurred as a result of “an act or omission” in providing health care services during the COVID-19 emergency. The facilities or professionals shielded from liability were required to meet three criteria:
- There was an arrangement for providing “health care services” as defined in Section 3081(5) of the Public Health Law pursuant to a COVID-19 emergency rule or were otherwise in accordance with applicable law;
- The “act or omission” occurred while “arranging for or providing health care services” and was impacted by “decisions or activities in response to or as a result of COVID-19” and was in accordance with state’s directives; and
- The facilities or professionals acted in good faith.
Health care facilities or professionals would be shielded from liability if they met the three foregoing criteria even if it were not in the course of treating a COVID-19 patient specifically. Any instances of gross negligence or intentional misconduct would not be shielded from this immunity. See Public Health Law § 3082 (eff. March 7, 2020).
Under this recent amendment, the scope of liability protection is narrowed to health care facilities or medical professionals providing “direct care related to the diagnosis or treatment of COVID-19 [where that] care is impacted by COVID-19.” See “Justification Section” of Senate Bill S8835. Notably, Section 3081(5)(c) of the Public Health Law, which stated that “health care services” included services provided by health care facilities or professionals that relate to “the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration”, was removed as part of the amendment. See “Summary of Provisions Section” of Senate Bill S8835. Consistent with the original Act, gross negligence, intentional criminal misconduct, reckless misconduct, or intentional infliction of emotional distress are not protected. See “Justification Section” of Senate Bill S8835.
The legislature highlights the need to continue monitoring malfeasance that may have occurred during the initial outbreak of the pandemic, vowing to hold multiple joint hearings as well as an examination of the impact COVID-19 has had on health care entities. See id.
For a copy of the amendment, please see the full version at Senate Bill S8835.
Jessica N. Haller, Law Clerk, contributed to this article. If you have any questions about this article, please contact David R. Ross, Esq., Senior Shareholder, via e-mail at firstname.lastname@example.org.