As the impact of the Coronavirus is being changing daily, so is the law on recovering for injuries and death due to Covid-19.
Effective August 3, 2020, the Governor signed into law a bill amending the Legislature’s recent grant of limited immunity to healthcare providers and institutions. Therefore, if you have a potential claim for injury or death, you should review this with us as soon as possible.
The initial grant of limited immunity
In the panic and confusion surrounding the state of emergency, the Legislature slipped into the April budget a provision that granted a limited immunity from suit for healthcare providers, such as doctors, nurses, hospitals, and nursing homes. At the urging of The Greater New York Hospital Association and other medical industry groups, healthcare providers were provided a limited immunity from suit. The medical interests feared that claims arising from the disease would bankrupt hospitals and nursing homes.
The law granted a limited immunity to the extent that in order to obtain a recovery, an injured party or the estate must prove gross negligence against the healthcare provider. Gross negligence is a higher form of negligence than ordinary negligence. Gross negligence is akin to recklessness or wanton conduct with a gross disregard of another’s safety.
By reason of the limited immunity, most claims would not be pursued. However, some claims would be possible. They would have to be reviewed carefully by a lawyer and possibly an expert.
Some possible examples of gross negligence claims are
- A nursing home places a newly received Covid-19 patient in the room with an otherwise well patient. The well patient dies.
- A patient is given hydroxychloroquine which may be contraindicated for the particular patient if the patient has a heart condition.
The opposition and unintended consequences of this law
The limited immunity was tucked in the budget bill and was not debated before its enactment.
The American Association of Retired Persons (“AARP”) found this immunity to be grossly unfair. AARP’s constituents, the elderly, were adversely affected by the Governor’s improvident order that nursing homes must accept Covid-19 patients. AARP’s director commented that “the right to seek legal redress in the courts is a fundamental American principle. . . . It was stripped from nursing home residents and their families in New York, and it should be restored, Period.” There were legislators supporting either outright repeal of the law or a modification. Some of these legislators claimed that they were blindsided by the immunity law which was slipped into the annual budget.
An unintended consequence of the law is that it appears to grant this limited immunity to healthcare providers for any and all claims of medical malpractice for treatment outside of the realm of Covid-19. This is a bit murky in the statute. For example if a patient had a bedsore develop, the hospital or nursing home would enjoy the limited immunity even though the turning of a patient is not related to Covid-19 treatment. It also appears to grant the immunity for claims of ordinary negligence against the hospital for the operation and maintenance of the premises, such as a slip and fall due to a leak in the hospital, a fall due to spilled food, a ceiling collapse, a piece of equipment falling on a patient, a broken pavement, etc.
In view of the opposition and the unintended consequences, the Legislature passed an amendment which was signed into law by the Governor on August 3, 2020.
The opposition did not win a repeal of the immunity. All that it won was a clarification of the initial law.
Thus, the initial law and its amendment state
- Effective March 7, 2020, when the Governor declared a state of emergency, healthcare providers and institutions have been granted a limited immunity against suit. This would appear to include both Covid-19 and non-Coronavirus claims. In other words, medical providers enjoy the benefit of the limited immunity on all claims, such as Covid-19, non-Coronavirus malpractice, and negligence claims for the operation and maintenance of the premises.
- Effective August 3, 2020, the limited immunity is lifted against healthcare providers for non-Covid-19 claims, such as medical malpractice not involving the disease and negligence in the operation and maintenance of the premises.
- The limited immunity granted to healthcare providers for Covid-19 claims continues, undisturbed, until the state of emergency has been declared ended. The state of emergency is still in effect.
The initial law and the amendment are a bit murky. In this brave new world of Covid-19, the law may be changed further.
Therefore, if you have either a Covid-19 claim or a non-Covid-19 against a medical provider, please review it with us.
We gratefully acknowledge the assistance of Deborah Truhowsky, Esq., in assisting in this article. Ms. Truhowsky handles lawsuits against nursing homes.