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LAWMAKERS LOOK TO REPEAL STATUTE SHIELDING NURSING HOMES FROM LIABILITY FOR COVID-19 DEATHS

Nursing home resident wearing a covid19 mask looking out a window.The Emergency or Disaster Treatment Protection Act (“the Act”), enacted by Gov. Andrew Cuomo in early April 2020, granted broad immunity to lawsuits against healthcare providers, including nursing homes, for negligence related to the coronavirus. 

The Act, lobbied for by industry representatives, was quietly inserted on Page 347 of New York’s final, voluminous budget bill.  According to the New York Times, many lawmakers were unaware the Act was contained within the budget bill when they approved the budget a few days later. The Act provided unusual legal protections for an influential industry:  a shield to nursing homes from lawsuits alleging they have been negligent in failing to protect residents from death or sickness caused by the coronavirus.

Now, with more than 5,300 residents of nursing homes in New York believed to have died from the outbreak, their loved ones are learning that because of the provision, they may not be able to pursue legal action against the nursing homes for neglect. According to the New York Times, several state lawmakers said they were blindsided by the provision. Further, they have been besieged by complaints that poor staffing and shoddy conditions allowed the virus to spread out of control in the homes. There is similar outrage to similar legislation passed in other states.

In response, at least two lawmakers in New York have called for the Act to be repealed.  According to an article written by Y. Peter King for Law 360, Assemblyman Ron Kim, D-Flushing, announced on May 18, 2020 that he is seeking to repeal the portion of the Emergency or Disaster Treatment Protection Act that provides nursing home executives with a civil liability shield for any treatment given that is impacted by the novel coronavirus pandemic.

The Emergency or Disaster Treatment Protection Act grants broad immunity to hospitals, nursing homes, physicians and nurses and other health care providers, doesn't bar claims for willful, reckless or criminal misconduct or gross negligence but makes clear that any bad decisions stemming from staffing shortages or a lack of resources can't be considered to be in that category. The law remains in effect for a currently unknown period of time - the duration of the state's public health crisis.

As reported by Law 360, Assemblyman Kim believes the gross negligence standard is an extraordinarily high bar that effectively insulates nursing home administrators and executives from civil and criminal liability and results in "zero accountability" for cases involving standard negligence.  Kim alleged that nursing home executives convinced Cuomo “behind closed doors and in secrecy” to add the statute to the budget bill under the guise that it would protect individual health care professionals on the front lines of the pandemic.  According to Kim, "Governor Cuomo should have fought to do everything possible to indemnify frontline workers and volunteers and save the lives of those trapped in nursing homes exposed to COVID-19."

Law 360 reported that New York has suffered 20,887 confirmed and probable coronavirus deaths as of May 19, 2020, according to the state's health department website. Kim's bill, floated as A10427, stated that nearly 5,000 elderly New York residents have died due to COVID-19.

Like Kim, Assemblyman Dan Quart, a Democrat co-sponsoring the bill and representing parts of Manhattan, said that granting civil immunity to nursing homes "gives operators a license to neglect and abuse already vulnerable populations."  According to Law 360, Quart said, "Civil lawsuits are one of the few tools available to patients and families who want to hold nursing homes accountable for substandard care.”  

If you have concerns about the care and treatment provided to a loved one in a nursing home during COVID-19, please contact us for a free consultation.

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