Orange County Supreme Court Dismisses Claims of Nursing Home Negligence related to Pressure Ulcers and Fungal Dermatitis without Prejudice under the EDTPA in Crampton v. Garnet Health

Written by: Jeffery T. Wolber, Esq.

Judge Bartlett of Orange County Supreme Court granted a partial motion to dismiss under §3211(a)(7) (failure to state a claim) based on the civil immunity provided by New York’s Emergency or Disaster Treatment Protection Act (EDTPA). Although this is a trial court decision, its analysis will be helpful for any healthcare defendant seeking to assert the EDTPA as a defense to a negligence or malpractice claim during the COVID-19 pandemic.

The complaint asserted that from May 21, 2020 to July 1, 2020 the resident of the facility  sustained injuries including pressure ulcers and fungal dermatitis and was sexually assaulted by an employee. Causes of action were asserted for (1) violation of Public Health Law §2801-d, (2) negligence, (3) gross negligence, and (4) sexual assault. The facility moved to dismiss all causes of action, except for sexual assault, pursuant to the EDTPA.

In support of the Motion, the facility offered a detailed affidavit from the Director of Nursing outlining the facility’s response to the COVID-19 pandemic. Pertinently, the affidavit demonstrated (1) that the facility was a “health care provider” rendering health care services or arranging for such services; (2) that the facility attempted in good faith to comply with CDC and New York guidance for COVID-19, which resulted in staff being limited and reassigned, thereby affecting the care to all residents; (3) that residents with confirmed or suspected COVID-19 were separated; (4) that employees were screened and sent home if symptomatic and required to quarantine; (5) that communal activities and visitations were suspended; (6) that only essential staff were permitted to enter the residents’ rooms, and were required to don and doff PPE, which required additional time; (7) that employees were required to follow a one-way foot pattern that required extra time to walk between rooms; (8) that staff called out of work sick due to illness or fear of COVID-19, which in turn affected all departments including nursing and housekeeping; (9) that some staff were required to work overtime; (10) that contract/agency nurses were brought in to compensate for absent staff; (11) that CNAs were permitted to work as temporary nurse aides in training; and (12) that the facility was required to make decisions regarding the prioritization of PPE, cohorting residents, reassigning staff, suspending visitation, and employing other measures to combat COVID-19.

In addressing CPLR 3211(a)(7), the court observed that it was required to assume the allegations of the complaint were true and afford every favorable inference to the Plaintiff, but it also noted that CPLR 3211(c) permitted parties to introduce evidence that might be considered on a motion for summary judgment. (It did not, however, state whether it was considering the motion as one for summary judgment.) The court further noted that a complaint’s “legal conclusions with no factual specificity” were not entitled to deference.

Turning to the question of immunity under the EDTPA, the court first concluded that the statute created something more than an ordinary “affirmative defense” that must be raised and pleaded by the defendant. Rather, the court concluded, in effect, that the plaintiff was required to plead an exception to immunity in order to properly state a cause of action. The court compared the EDTPA to General Obligations Law § 9-103 (recreational use immunity for property owners) and Environmental Conservation Law § 27-1313 (immunity for remedial programs at inactive hazardous waste disposal sites), reasoning that all three statutes created “immunity from liability.” The court also noted that the EDTPA was intended to have a broad effect with respect to the COVID-19 emergency and that “the factual predicate for invoking this broad immunity is minimal.”

The court also followed the reasoning of Bronx County Supreme Court Justice Higgitt’s decisions on the EDPTA that held that “the statute does not qualify how treatment must be affected – whether positively, negatively, or otherwise – it merely requires that treatment be ‘impacted.’”

Applying these principles, the court held that the affidavit submitted by the defendants satisfied the minimal showing that the treatment was “impacted [by the facility’s] decisions or activities in response to or as a result of the Covid-19 outbreak and in support of the state’s directives” for the purposes of PHL §3082(1)(b). The court further reasoned that it was not necessary for the resident’s treatment to have been impacted in a different manner than other residents in order for the immunity to attach. As such the claims of negligence and public health law violations were dismissed.

The court also dismissed plaintiff’s claim of recklessness. It reasoned that Plaintiff’s conclusory allegations did not provide sufficient factual detail to warrant the assumption of truth on a motion to dismiss. The court reasoned that (1) as per PHL § 3082(2), acts or omissions resulting from “a resource or staffing shortage”—which was one of plaintiff’s allegations—may not be considered to be gross negligence or reckless misconduct; and (2) the remaining facts alleged evinced only ordinary negligence.

Of note, the dismissal of these claims was without prejudice for plaintiff to replead. While it is perhaps understandable why the court permitted plaintiff to replead the claim for gross negligence, it is less clear why the claims for negligence and public health law violations were not dismissed with prejudice given that the court had apparently just concluded that the only exception to immunity under the EDTPA would be a claim for “willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.” The court did not address this point in its decision. Nevertheless, given the reasoning applied, it would seem unlikely that an amended complaint would be accepted on any theory other than gross negligence.