Bronx County Supreme Court Dismisses Medical Malpractice Claim Under the EDTPA and Executive Order 202.10 in Hampton v. City of N.Y.

Written by: Jeffrey T. Wolber, Esq.

 On June 3, 2021 Judge Danziger of Bronx County Supreme Court issued a decision granting a motion to dismiss under CPLR 3211(a)(1) (documentary evidence) and (7) (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 hospital defendants’ deferred treatment of leg fractures on April 22, 2020 (and thus fell under the original version of the EDTPA, before it was amended on August 3, 2020). The plaintiff asserted several claims, including negligence and malpractice related to the treatment, failure to maintain medical records because a CT scan was allegedly lost, race-based discrimination, fraud, and violation of the federal EMTALA (anti-patient-dumping) statute. Notably, the plaintiff did not plead gross negligence—the sole exception to EDTPA immunity. Hampton v. City of NY, No. 28392/2020E (N.Y. Sup. Ct., Bronx, Jun. 3, 2021) (Danziger, J.).

The defendants argued that the EDTPA provided immunity for all claims of malpractice, and that Executive Order 202.10 provided immunity for any recordkeeping mishaps. In support of the motion, the defendants attached affidavits establishing: (1) that the hospital was prohibited from performing elective surgeries at the time; (2) that the hospital’s COVID-19 response required to reassigning orthopedists and diverting all available resources towards the covid pandemic; (3) that the Plaintiff was offered an inpatient transfer to another facility able to perform an ORIF, but he opted for outpatient transfer; and (4) that the injuries were not life threatening and a brief delay would not impair chance of a successful surgery.

The Court held that the EDTPA provided a basis for dismissal because the defendants had shown that “the decisions regarding the treatment rendered to plaintiff were directly affected by [the hospital’s] emergency response to the Covid-19 pandemic, and its required compliance with the City and State’s directives.” It further dismissed all claims related to the allegedly lost CT scan pursuant to Executive Order 202.10, which it held “confers absolute immunity for the purported failure to maintain accurate records during the Covid-19 pandemic.” The fraud claim was dismissed because the plaintiff did not allege the requisite intent; the discrimination claim was dismissed because the plaintiff did not establish what services were allegedly withheld due to race; and the EMTALA claim was dismissed because the hospital could not perform the surgery due to executive and mayoral orders in place at the time.

The result of this decision stands in contrast to that of two other decisions issued from Bronx County, both by Judge Higgitt, denying dismissal under the EDTPA: (1) Matos v. Chiong, No. 30027/2020E (N.Y. Sup. Ct.., Bronx, Dec. 9, 2020) (Higgitt, J.); and (2) Townsend v. Penus, No. 800321/2021E (Sup. Ct., Bronx, Jun. 4, 2021) (Higgitt, J.). There, Judge Higgitt held that a defendant seeking dismissal under the EDTPA must provide an affidavit that conclusively demonstrates that the treatment of the patient was impacted by the defendant’s COVID-19 response. The Hampton decision is not inconsistent with either Matos or Townsend. Unlike the defendants in each of those cases, the Hampton defendants provided affidavit evidence showing that the care of the plaintiff, specifically, was affected by resource allocation decisions and governmental orders regarding COVID-19. In both Matos and Townsend, the defendants offered evidence of the hospitals’ COVID-19 responses more generally, and did not specifically identify how such responses impacted the treatment at issue.