New York Rolls Back Legal Immunity for Hospitals, Nursing Homes

Under a law signed by Governor Cuomo, nursing homes, hospitals, and other health care facilities in New York can once again be held liable in lawsuits and criminal prosecutions for care provided to patients not being treated for COVID-19. Previously, these facilities were largely granted protection against legal action over care provided to all patients during the pandemic. Attorney Ben Barry of Martin, Harding & Mazzotti, LLP discusses the law and its implications on WVMT.

Please give it a listen or read the transcript below.

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Interviewer: We’re talking with Ben Barry from Martin, Harding & Mazzotti. And, Ben, I wanna ask you about what’s happening in New York. They just lifted the immunity that was given to hospitals and health care facilities concerning COVID-19. So, during a period of time, they were not gonna be able to be sued for liabilities around COVID-19. Gross negligence still, though, they could be sued for, correct?

Ben: That’s correct. And let me clarify. In April, April 6, specifically, Governor Cuomo had enacted article 30-D of the Public Health Law, which granted blanket immunity for basically all healthcare workers, including nursing homes, administrators, nurses, EMTs, you name it. If you were in the healthcare industry at all, you had this nice, warm blanket wrapped around you that said, “Look, you can’t be sued. And you can’t be sued for anything, really, that you do from March 7th, until the COVID emergency disaster is over.”

And a lot of people said, “Well, that’s a really significant thing to do.” And now, we don’t have oversight. Well, there’s oversight, but there’s no legal ramifications for people that are doing things that are kind of on the cusp of negligent or whatever. So, Cuomo extends this huge blanket protection to health care workers. And as of a hearing on Monday, and new legislation, which I haven’t read the text of the new legislation as of yet or the amendment to that section of Public Health Law.

But Cuomo has kind of rolled back those protections. Now, most of those protections still exist. The rollback was very slight and there is still a blanket immunity for healthcare workers who are dealing with and trying to treat patients who are possibly COVID-19 positive or are in fact COVID-19 positive.

The rollback really specifically relates to individuals being treated by healthcare facilities, and more specifically nursing homes, who are not being treated for COVID and are just sort of receiving their regular standard of care. None of the protections allowed immunity for individuals who had suffered or had committed basically willful or intentional criminal misconduct, beating up somebody or gross negligence where they completely gave a patient the wrong medication…

Interviewer: Leaving that sponge in during a surgery.

Ben: Yeah, I mean, the gross negligence and maybe the sponge may be protected, but possibly not. But you have to demonstrate gross negligence, reckless misconduct, or really some kind of intentional tort, and intentional infliction of harm, or assault, or just something that’s so grossly negligent that there’s no excuse whether you’re dealing with COVID-19 or not.

Interviewer: So, Ben, they left in place the immunity for COVID-19 related problems. And why do you think that is? I know that in New York, the AARP State Director, Beth Finkel has been very critical of that saying, “You need that more than ever now.” And I know in New York, at least originally, they sent a lot of people with COVID-19 illnesses, who many of whom died to the nursing homes.

Ben: Sure. So early on, at the outset of the sort of pandemic, Governor Cuomo… and generally speaking, Cuomo had basically issued some directives that required nursing home facilities to accept patients or prevented nursing homes from denying entry of certain patients.

And so, as… what Cuomo’s justification for the immunity was or is that, “Hey, I’ve directed these nursing homes to take these people. And so, we need to offer them some protection so that patient A coming in having supposedly recovered from COVID-19 and infecting patient B, patient B can’t sue the nursing home because they were following my order.”

So, and there have been a lot of advocates and non-profit groups who monitor for-profit and not-for-profit nursing homes to make sure that they’re doing the right things by their patients. And many of those groups are saying, “Look, this is absolutely the wrong decision. What we should be doing is we should be applying the same or more strict standards on these nursing homes because we’re in emergency.”

So, in an emergency, you don’t slack in the line, you tighten it, because we have the ability to do so, and we have the ability to monitor. We should have the ability to have state workers go into observe as a third party what these nursing homes are doing and whether or not they’re following the standard of care.

The argument is that with Cuomo’s legislation, he basically gave them a blank check to do whatever they want. You just can do whatever you want, as long as you’re not doing something that’s gross negligence or willful misconduct, you can do it. If it’s an emergency so loosen up the rope and you guys just do what you need to do. You can’t be sued for it.

Interviewer: But again, to clarify the law, you have to prove negligence, correct? So, even if all things were the way they were before, before the immunity, you would have had to have proven that somebody, a healthcare worker, walked into the facility, knowingly had COVID-19, and then knowingly spread it, and therefore a patient within it died. You would have to be able to prove all these actions and decisions in order for them to really be sued anyway, correct?

Ben: Generally, yes. I would probably refine that statement to some extent to kind of meet the threshold for negligence. However, I don’t think that this bill was really intended to address the issue of spreading COVID-19. I think it was issued to deal with some of the things that would typically have been considered negligence, for example, we have a staff shorting at the nursing home.

And as a result of that, we can’t service 100 of our patients. We can only really under state directive or the internal policy of the nursing home, we can only actually service 50 people with the staff that we have. But because of COVID-19, we don’t have any other staff. We only have 50 people working. We have 100 patients.

And as a result of that, something that happens to one of those patients, that could be a result of a staffing shortage would likely be a claim for negligence but for the immunity that’s provided in the Public Health Law. I don’t think it’s directed specifically at the transmission of COVID-19, although it could be. I think it’s used for a larger, much wider scope of claims.

Interviewer: You can see where family members would have been really upset or concerned about this at a time that they couldn’t even go visit their loved ones in the nursing homes. They weren’t allowed to come in. And then there’s no accountability for what’s going on in the nursing home while they’re not able to go in.

Ben: Not only could family members not go in and kind of get some feedback from their loved one who is in the nursing facility, which is where most of the claims arise. Because Aunt Susie went in to visit grandma and grandma’s covered in bruises and apparently fell and lacerated her head, for example.

Aunt Susie is going to be the person that’s reaching out to an attorney or reaching out to the nursing home or a patient advocate groups. But also… So Aunt Susie can’t go into the nursing home to see what’s going on during this emergency. But also, the state can’t go in also. There are state groups, state individuals, state workers that go into take a look at things, make sure things are okay. And they were even restricted from access.

Interviewer: Well, Ben, thank you for the insight, and I know this is a topic I’ve got so many more questions to ask, but we’re running out of time. But if anyone has more questions, feel free to always reach out to Ben Barry or any one of the great lawyers over at Martin Harding & Mazzotti,

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