Senior citizen woman in wheelchair in a nursing home.

COVID-19 and Nursing Homes: The New York State Experience

By James W. Lytle 

While New York State has generally earned high marks for its response to the COVID-19 pandemic, nagging questions continue over whether more might have been done to protect patients in nursing homes and other congregate settings — and whether some of the state’s policies even may have made matters worse.

Lessons from the New York State experience may prove helpful to those regions that have displaced New York as the epicenter of the American pandemic, and may help ensure that adequate steps are taken to protect the most frail and vulnerable among us from any resurgence of COVID-19 or from some future disease.

Although New York was among the hardest hit states, with the highest number of deaths thus far (over 32,000, more than twice as many as California), the aggressive steps taken by Governor Andrew Cuomo and his administration have been widely credited with reducing the spread of the disease in the State.

But a key, sustained criticism of the Governor’s handling of the pandemic focuses on the state’s nursing homes.

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Busy Nurse's Station In Modern Hospital

Finetuning Liability Protections in the COVID-19 Emergency

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 protectionsThe Governor signed the bill into law on August 3rd.

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State Civil Liability Protections for Physicians who Provide Care During Covid-19 Pandemic map.

How States are Protecting Health Care Providers from Legal Liability in the COVID-19 Pandemic

By Valerie Gutmann Koch

Since the onset of the COVID-19 pandemic, clinicians and policymakers alike have raised the alarm about potential legal liability for following crisis standards of care.

Liability protections may be necessary when, due to the circumstances of the emergency, a state faces scarce resources (such as ventilators or ICU beds) and the state activates its crisis standards of care (CSC). A CSC authorizes the legal prioritization of patients for scarce resources based on changing circumstances and increased demands. CSCs provide a mechanism for reallocating staff, facilities, and supplies to meet needs during a public health emergency.

Notably, and by necessity, the standard of care that clinicians may be able to provide during the COVID-19 pandemic may depart significantly from standard non-emergency medical practice. In a non-crisis setting, the prevailing medical standard of care focuses on the needs of each individual patient and is centered on the principle of informed consent. In a public health emergency, however, such concentrated care may be impossible or inadvisable due to: (1) resource limitations and (2) the goal of saving as many lives as possible.

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