By James W. Lytle
When the scope of the COVID-19 pandemic became apparent, legal commentators, physician organizations, and health care policymakers sounded the alarm over the potential civil and criminal liabilities that practitioners and facilities might face during the emergency.
In short order, the federal government and many states enacted liability limitations. At least two states—Maryland and Virginia—had pre-existing legislation that was triggered by the emergency, while many other states enacted or are considering new legislation to limit liability during the crisis.
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.
Predictably, at least one state has already begun to tinker and fine-tune its liability limitations. Just three months and twenty-one days after liability protections were enacted, the New York State legislature sent a bill to Governor Andrew Cuomo that curbs those protections. The Governor signed the bill into law on August 3rd.
In general, both the original bill and its amended version provide civil and criminal immunity to health care professionals and facilities for certain acts or omissions during the COVID 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 immunity.
The original provisions, known as the Emergency or Disaster Treatment Protection Act, were contained in a 361-page budget bill enacted at the constitutional deadline for budget legislation and during the height of the New York outbreak: the Capitol building was closed to the public, a handful of legislators had contracted COVID-19, and many voted remotely. The liability protections did not, as a result, receive 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, combined with outrage over the thousands of nursing home patient deaths from COVID-19, helped generate sufficient political support to modify the provisions.
The amended version made several modifications:
- The amendment limits liability protection only to services rendered to persons with confirmed or suspected cases of COVID-19 and only to COVID-19 services rendered to such persons—not to “the care of any other individual who presents” during the emergency;
- 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; and
- 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 took effect when the bill was signed and apply to any acts or omissions that occur thereafter.
The Healthcare Association of New York State opposed these revisions, 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.” The sponsors, on the other hand, worried that the revised bill didn’t go far enough and should have revoked the immunity provisions retroactively.
On balance, the roll-back of the original legislation may not be all that consequential: while limiting the liability protections to only COVID-19 treatment being rendered to COVID-19 patients is not trivial, non-COVID patients in New York State are probably at less risk of being harmed in August of 2020 than earlier in the pandemic from actions or omissions by health care providers. As the chaos of the pandemic’s peak has receded, the potential for inadvertent or negligent harm to non-COVID patients has probably receded as well—particularly now that these patients are being encouraged to return for medical treatment.
On the other hand, if the amending legislation had retroactively removed the liability protections, the consequences would be much worse: health care facilities and professionals in New York would be subject, after the fact, to crisis-related liability from which they had been shielded and would, moreover, be justifiably distressed if the protections they had been promised were retroactively stripped away.
With the pandemic now expanding its reach across the country, the New York experience in responding to the liability issues raised by COVID-19—and then modifying that response—may be instructive for other states that are drafting or amending liability protections.
James W. Lytle is Senior Counsel at Manatt, Phelps & Phillips, LLP and a fellow in the Advanced Leadership Initiative at Harvard University.