Written by: Kristin Merrick

Several changes to New York laws were recently implemented in response to the current COVID-19 emergency.  As described more fully below, the ability to file a claim for damages as a result of medical malpractice occurring during the pandemic has narrowed. 

Governor Cuomo declared a disaster emergency for all New York State as a result of the COVID-19 health crisis on March 7, 2020 by way of Executive Order 202.  On March 23, 2020, Executive Order 202.10 was signed, temporarily suspending and modifying laws related to the COVID-19 emergency.  In part, Executive Order 202.10 provided immunity from civil liability to medical professionals and facilities for “any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak.” New York State then passed the Emergency or Disaster Treatment Protection Act, Public Health Law Article 30-D, codifying the immunity provided in Executive Order 202.10.  

Immunity from civil liability means that a person wrongfully injured as a result of medical malpractice is barred from filing a lawsuit to recover for injuries and damages that occur while the emergency declaration is in place.  This includes recovery for pain and suffering and economic losses.  

The Emergency or Disaster Treatment Protection Act limits immunity to cases in which the malpractice occurs “in the course of arranging for or providing health care services and the treatment of the individual is impacted by the health care facility’s or health care professionals’ decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directive.”  NY PHL §3082(1)(b) (emphasis added).  The stated purpose of the immunity is 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.” NY PHL §3080 (emphasis added). 

The limitation and intent provided by the Emergency or Disaster Treatment Protection Act appears to limit medical malpractice immunity only for treatment related to Covid-19, but it is anticipated that defendants in medical malpractice lawsuits will argue that all medical treatment provided during the emergency declaration is immune from civil liability.  This issue will certainly be litigated in the near future with the courts determining the extent of the immunity.

There is an exception to this immunity for medical malpractice that occurs due to gross negligence, reckless or intentional conduct.  Gross negligence is a complete disregard of the rights and safety of another.  It should be noted that the vast majority of medical malpractice claims do not rise to the level of gross negligence, reckless or intentional conduct. 

The current state of the law surrounding medical malpractice litigation is uncertain.  If you or someone you know believes they have been injured as a result of medical malpractice, our team at Faraci Lange is here to answer your questions.  We are currently working remotely and are available for phone calls and virtual meetings.