Bronx County Supreme Court Rules on Applicability of New York’s EDTPA to Medical Malpractice Claim for Stroke Presentation

Written by: Jeffrey T. Wolber, Esq.

On June 4, 2021 Judge Higgitt of the Bronx County Supreme Court issued a decision denying a motion to dismiss under CPLR 3211(a)(7) for failure to state a claim based on the civil immunity  provided by New York’s Emergency or Disaster Treatment Protection Act (EDTPA) and Governor Cuomo’s Executive Order 202.10. The case involved the plaintiff’s presentation to a hospital emergency department on May 2, 2010 (and thus involved the original version of the ETPA, before it was amended on August 3, 2020). Townsend v. Penus, No. 800321/2021E (Sup. Ct., Bronx County, Jun. 4, 2021) (Higgitt, J.).

The decision is substantively similar to a previous decision issued by Judge Higgitt on the EDTPA, where another motion to dismiss was denied in Matos v. Chiong, No. 30027/2020E (N.Y. Sup. Ct.., Bronx, Dec. 9, 2020) (Higgitt, J.). There, Judge Higgitt denied the motion because the defendants did not provide evidence that the treatment of the plaintiff was “affected” by the defendants’ COVID-19 response, even though they did provide evidence of the general adverse conditions in the hospital as a result of the pandemic at the time of treatment.

The Townsend defendants asked the court to reconsider its holding in Matos. They argued that the rule it pronounced was untenable because it required healthcare defendants to effectively admit facts that could support liability (e.g., that they were distracted or otherwise preoccupied by the pandemic) in order to bring a motion for dismissal. They argued that the legislature could not have intended to create such a “Hobson’s choice.” Instead, they asked the court to infer as a matter of law that the treatment of the patient was “affected” by the pandemic based on affidavits demonstrating the hospital’s COVID-19 response efforts more generally.

But the court held fast to its pronouncement in Matos. Although it did not directly respond to defendants’ “Hobson’s choice” argument, it did note that the EDTPA “does not qualify how treatment must be affected — whether positively, negatively, or otherwise — it merely requires that treatment be ‘impacted.’”  Townsend at * 3. It further noted that the legislative intent was clear from the language of the statute that such an “impact” was a requirement for civil immunity. (The court also effectively equated the immunity under the EDTPA with that provided by Executive Order 202.10). Thus, after considering whether the defendants’ affidavits “conclusively” demonstrated entitlement to immunity, the court denied the motion for the same reason as in Matos: that they did not show how the plaintiff’s treatment was “impacted” by the defendants’ efforts in response to COVID-19. We anticipate that this decision will be appealed.