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By: Kevin G. Kenneally, Esq. and William E. Gildea, Esq.
The embattled NY Governor Andrew Cuomo backtracked on his signature pandemic legislation that recently unraveled and marred his reputation, as allegations of cronyism and endangering the state’s most vulnerable elderly population were widely reported. This repeal follows disclosure of investigations into the Cuomo administration’s directive forcing nursing homes to accept COVID-19 patients from hospitals. This government order created a dangerous environment that allowed the virus to quickly spread in New York, leading to thousands of elderly resident deaths and illnesses.
The reversal likely will lead to catastrophic injury and wrongful death litigation against facilities, as well as exposure to their insurers, because of the Governor’s legal directive to accept elderly infected with COVID-19.
On April 6, 2021, the Governor signed legislation that repeals the immunity and protection previously conferred on skilled nursing and health care facilities in New York state for wrongful death and related claims arising from the COVID-19 crisis. Senate Bill S5177 “[r]epeals the emergency or disaster treatment protection act which protects health care facilities and health care professionals from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency.” https://www.nysenate.gov/legislation/bills/2021/s5177 (accessed April 8, 2021).
The now-repealed Treatment Protection Act, also known as the Emergency or Disaster Treatment Protection Act (codified as part of Public Health Law Article 30-D) formerly shielded health care facilities such as long-term care (LTC) facilities and hospitals, including its administrators and executives, from liability at the respective facilities during the COVID-19 to “to promote the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency.” The legislation previously shielded health care facilities and professionals from civil or criminal liability for harm or damages alleged to have been sustained by patients or elderly related to health care services if the following criteria was met: (1) the facility/professional was providing health care services in accordance with the applicable law/COVID-19 emergency rule, (2) the alleged act or omission was impacted by the facility/professional’s decisions or activities in response to or as a result of COVID-19, and (3) the health care services were administered in good faith.
The newly-signed law, Senate Bill S5177 was introduced in the New York Senate on February 25, 2021 and was signed by Governor Cuomo on April 6, 2021. This followed news reports that the administration directive had endangered the elderly residents and that the directive allegedly was authored by an aide to the governor with ties to the LTC industry lobbyists.
Health care providers, professionals, hospitals, and long-term care facilities, and their insurers, should be aware of this repeal which dramatically changes the landscape for COVID-19 litigation in New York state, which has suffered among the worst COVID-19 outcomes for its elderly population.
For more information about this topic, please contact Kevin Kenneally at [email protected] or William Gildea at [email protected].