Civil Immunity for COVID-19 Claims in New York: Impact of the Repeal of the EDTPA

Written by: Jeffrey T. Wolber, Esq.

On April 6, 2021, Governor Cuomo signed into law A.03397/S.5177, repealing Article 30-d of the Public Health Law, also known as the Emergency or Disaster Treatment Protection Act, or the EDTPA, which provided civil immunity to health care professionals and entities for certain claims involving COVID-19.

The EDTPA was originally enacted on April 3, 2020, was retroactively effective as of March 7, 2020, and was amended on August 3, 2020 to narrow the scope of immunity provided. The bill repealing the EDTPA contained only two sections, which read as follows: “Article 30-d of the public health law is REPEALED” and “This act shall take effect immediately.”

A frequent question we have received from health care clients in the wake of this repeal is whether it applies retroactively. That is, whether the repeal removes the immunity previously attached to conduct occurring between March 7, 2020 and April 6, 2021. The short answer to this question is no.

Under New York law, a statute is generally not given retroactive effect unless it contains clear language indicating such intent. See Regina Metro. Co., LLC v New York State Div. of Hous. and Community Renewal, 35 N.Y.3d 332, 366-71 (2020). This general rule is “based on elementary considerations of fairness that dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Id. at 370. Moreover, under Gen. Const. L. § 93:

The repeal of a statute or part thereof shall not affect or impair any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be enjoyed, asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected.

(Emphasis supplied). This presumption applies to every statute “unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended.” Gen. Constr. L. § 110.

Applying these principles to the repeal of the EDTPA therefore requires consideration of the language of A.03397/S.5177. Notably absent from that bill is any language indicating that a retroactive intent was intended. Indeed, the language “effective immediately” points to a prospective effect, since the legislature could have provided an earlier effective date if they had intended the repeal to apply retroactively. Therefore, there is no “clear” expression of retroactive intent, as would be required to overcome the presumption against retroactivity.

Moreover, even if A.03397/S.5177 were intended to have retroactive effect, there would be considerable questions raised as to its constitutionality. The Court of Appeals deemed a statute that retroactively expanded civil liability of rent-stabilized property owners to be unconstitutional in Regina Metro, 35 N.Y.3d at 375-388 (2020). The court explained that retroactive expansion of such liabilities, which would have potentially imposed large civil liability for past rent charges when none had previously existed, would have a significant “destabilizing” effect on property rights and contract rights. Id. at 382. The court explained that retroactive application “would merely punish owners more severely for past conduct they cannot change—an objective we have deemed illegitimate as a justification for retroactivity.” Id. at 384. Thus, after noting that there was no indication that the legislature had contemplated such effects and that retroactive effect would not further the legislative purpose of preventing future rent overcharges, it held that retroactive application would be unconstitutional. Id. at 388.

For similar reasons, retroactive application of the repeal of the EDTPA would raise strong constitutional concerns. Just as A.03397/S.5177 is silent on whether it has retroactive effect in the first place, it also contains no justification for why retroactive modification of existing health care liability would further any legislative aim. At most, the sponsor’s memorandum makes vague reference to holding bad actors “accountable.” Not only is this statement equivocal, at best, on the issue of retroactivity, but there is no corresponding acknowledgement of the potential destabilizing effect that the creation of new civil liabilities would have on the health care industry as a whole.

It is easy to envision the destabilizing effect that a blanket repeal of the EDTPA would have. A large number of health care facilities and professionals, and their insurers, would face potentially enormous civil liabilities for treatment rendered to an almost incalculable number of patients over the course of approximately 13 months. Health care facilities and professionals were often operating in sub-optimal conditions and in the face of constantly-evolving scientific information and administrative guidance over this same 13-month period. Also, like the landlords in Regina Metro, the various health care professionals and entities who would face new liabilities would be unable to change their past conduct to conform with current standards of care. Thus, a retroactive application of the EDTPA would “merely punish [professionals] more severely for past conduct they cannot change.”

Hall Booth Smith, P.C., is committed to defending the critical and often heroic efforts of health care professionals and entities during the COVID-19 pandemic from claims of negligence, malpractice, and gross negligence. If you are a health care professional or entity that has been sued for conduct occurring during the pandemic, we are here to help.