When the scope of the COVID-19 pandemic became apparent, legal commentators,1 physician organizations2 and healthcare policymakers3 sounded the alarm over the potential civil and criminal liabilities that might be faced by practitioners and facilities during the emergency. In short order, the federal government and many states enacted liability limitations.4 At least two states—Maryland and Virginia—had pre-existing legislation that was triggered by the emergency, while many others—including New York—enacted or are considering new legislation to limit liability during the crisis. For a handy and updated reference, compiled by Chubb, to steps taken by Congress and the state legislatures to provide civil immunity protections during the pandemic, see https://www.chubb.com/microsites/covid19-resource-center/_assets/pdf/chubb-state-civil-immunity-activity-tracking-chart.pdf.
While the source (executive or legislative), scope (civil or criminal) and precise terms of these liability protections varied by jurisdiction, the speed with which they were enacted was remarkable, given the intensely contentious political battles that typically ensue over medical malpractice and civil justice reform. One state—New York—has already begun to tinker with and fine-tune its liability limitations. Just three months and 21 days after liability protections were enacted in New York, the legislature passed a bill (SB 8835/AB 10840) to curb those protections. The Governor has until August 3 to act on it.
The original provisions, known as the Emergency or Disaster Treatment Protection Act, were contained in a 361-page budget bill (Part GGG of Chapter 56 of the Laws of 2020), enacted at the constitutional deadline for budget legislation and during the height of the New York outbreak, when the capitol building was closed to the public, a handful of legislators had contracted COVID-19 and many voted remotely.5 The liability protections did not, as a result, receive especially close scrutiny by the press or the public. The fact that the provision was viewed as having been surreptitiously slipped into an omnibus budget bill,6 combined with concern over the potential legal redress that some COVID-19-afflicted New Yorkers might deserve, helped generate sufficient political support to modify the provisions.
In general, both the original bill and its amended version provide civil and criminal immunity to healthcare professionals and facilities for certain acts or omissions during the COVID-19 emergency, except where the acts or omissions constituted intentional criminal misconduct, gross negligence, reckless misconduct or intentional infliction of harm. Staff or resource shortages will not be considered gross negligence or any of the other exceptions to the grant of immunity.
The amended version made several modifications:
- The amendment limits liability protection to only services rendered to persons with confirmed or suspected cases of COVID-19—and not to “the care of any other individual who presents” during the emergency—and applies the protection only to COVID-19-related services rendered to such persons.
- While the original law extended to the diagnosis, prevention or treatment of COVID-19, the amendment deletes “prevention” and limits protections to the actual provision of care and not to “arranging for” care.
- The amendment conditions liability limitations to services rendered “in accordance with applicable law or where appropriate pursuant to a COVID-19 emergency rule.”
These modifications will take effect when the bill is signed and will apply to any acts or omissions that occur thereafter.
The Healthcare Association of New York State opposed these revisions,7 predicting that the revised liability protections would “make it that much harder for hospitals and nursing homes to recruit healthcare workers” during a second wave. Likewise, the Greater New York Hospital Association warned that “health care workers should not have to look over their shoulder for trying to save as many lives as possible during a horrific pandemic.”8 The sponsors, on the other hand, worried that the revised bill didn’t go far enough and should have revoked the immunity provisions retroactively.9
On balance, the rollback of the original legislation, if signed into law, may not be as consequential as some fear. One of the most significant provisions in the recently passed amendment relates to reimposing liability for malpractice relating to non-COVID-19 patients. It is worth assuming that non-COVID-19 patients in New York State are at less risk of being harmed in August 2020 than earlier in the pandemic from actions or omissions by healthcare providers. As the chaos of the pandemic’s peak has receded, the potential for inadvertent or negligent harm to non-COVID-19 patients has probably receded as well—particularly now that these patients are being encouraged to return for medical treatment.
In addition, while non-COVID-19 treatment to COVID-19 patients will no longer be immunized, we would anticipate that it might be very difficult to meaningfully distinguish between COVID-19 and non-COVID-19 care to COVID-19 patients; and the impact, therefore, of that change in the immunity statute may prove to be fairly limited.
On the other hand, if the amending legislation had retroactively removed the liability protections, the consequences would be much worse: Healthcare facilities and professionals in New York would have been made subject, after the fact, to crisis-related liability from which they had been shielded and would be justifiably distressed if the protections they had been promised were retroactively stripped away.
We will be monitoring the Governor’s action on the bill; in the meantime, please do not hesitate to contact us if you have any questions regarding the pending legislation.
1 Cohen, G., Crespo, A., White, D., “Protect the Doctors and Nurses Who Are Protecting Us,” New York Times, April 1, 2020, https://www.nytimes.com/2020/04/01/opinion/coronavirus-ventilators-doctors.html, and “Potential Legal Liability for Withdrawing or Withholding Ventilators During COVID-19: Assessing the Risks and Identifying Needed Reforms,” JAMA, May 19, 2020 (April 1, 2020 online edition), https://jamanetwork.com/journals/jama/fullarticle/2764239.
2 Nicol, R., “Doctors seek protection from liability lawsuits as confirmed coronavirus cases increase,” FLAPOL, March 28, 2020, https://floridapolitics.com/archives/325495-doctors-seek-protection-lawsuits-coronavirus, and “KMS urges Gov. Kelly to issue executive order on liability amid COVID-19 pandemic,” Kansas Medical Society, https://www.kmsonline.org/resources/covid-19-resources/3187-covid-19-april14.
3 Brady, M., “Azar extends liability immunity in the fight against COVID-19,” Modern Healthcare, March 12, 2020, https://www.modernhealthcare.com/legal/azar-extends-liability-immunity-fight-against-covid-19.
4 Koch, V., “How States are Protecting Health Care Providers from Legal Liability in the COVID-19 Pandemic,” Bill of Health, May 5, 2020, https://blog.petrieflom.law.harvard.edu/2020/05/05/legal-liability-health-care-covid19-coronavirus-pandemic/.
5 Precious, T., “Fog descends on Albany as Covid uncertainties weigh heavily on budget talks,” Buffalo News, March 30, 2020, https://buffalonews.com/news/local/fog-descends-on-albany-as-covid-uncertainties-weigh-heavily-on-state-budget-talks/article_75d19465-6036-5fbe-8861-94559210faf3.html.
6 Harris, A., Barker, K., McKinley, J., “Nursing Homes Are Hot Spots in the Crisis. But Don’t Try Suing Them.” New York Times, May 13, 2020, https://www.nytimes.com/2020/05/13/nyregion/nursing-homes-coronavirus-new-york.html.
8 Hogan, B., “NY bill would rollback COVID-19 liability protection for hospitals, nursing homes,” New York Post, July 21, 2020, https://nypost.com/2020/07/21/ny-bill-would-rollback-covid-19-liability-protection-for-hospitals/.