Summary of the Landscape of Civil Immunity against COVID-19 Claims in New York

Written by: Jeffrey T. Wolber, Esq.

With the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) by A.03397/S.5177, the New York legislature has effectively terminated its civil immunity for health care professionals against claims involving COVID-19. Because this repeal does not have retroactive effect, there are three main types of immunity left behind that health care professionals and entities should be aware of. These immunities depend largely on the date on which the conduct at issue occurred, and they are summarized below.

First, under the original version of the EDTPA, which applies to conduct occurring between March 3, 2020 and August 3, 2020 (NY EDTPA version 1), civil immunity is granted if the following conditions are met:

1. 1. The defendant was a health care professional or facility;
   2. The act or omission occurred while the defendant was arranging for or providing services that related to any of the following:
      • the diagnosis, prevention, or treatment of COVID-19;
      • the assessment or care of individuals with confirmed or suspected COVID-19; or
      • the care of any other individual who presented for treatment during the declared emergency;
   3. The services, or arrangements for services, were being provided in accordance with law or pursuant to a COVID-19 emergency rule;
   4. The services or treatment received by the individual was impacted by the defendant’s decisions or activities in response to or as a result of the COVID–19 outbreak and in support of the state’s directives; and
   5. The services, or arrangements for services, were made in good faith.

Second, under Governor Cuomo’s Executive Order 202.10, which applies to conduct occurring between March 23, 2020 and May 7, 2020, civil immunity is granted if the following conditions are met:

1. 1. The defendant is a physician, physician assistant, specialist assistant, nurse practitioner, licensed registered professional nurse, or licensed practical nurse;
   2. The injury was a direct result of an act or omission that occurred while the defendant was in the course of providing medical services in support of the State’s response to the COVID-19 outbreak; and
   3. The injury was not the product of gross negligence.

Third, under the amended version of the EDTPA, which applies to conduct occurring between August 3, 2020 and April 6, 2021, civil immunity is granted if the following conditions are met:

1. 1. The defendant was a health care professional or facility;
   2. The act or omission occurred while the defendant was providing services that related to any of the following:
      • the diagnosis or treatment of COVID-19; or
      • the assessment or care of an individual as it relates to COVID-19 for an individual with confirmed or suspected COVID-19;
   3. The services were being provided in accordance with law or pursuant to a COVID-19 emergency rule;
   4. The services or treatment received by the individual was impacted by the defendant’s decisions or activities in response to or as a result of the COVID–19 outbreak and in support of the state’s directives; and
   5. The services, or arrangements for services, were made in good faith.

For conduct occurring on or after April 6, 2021, traditional rules of negligence and medical malpractice apply.

Notably, these state immunities are in addition any immunities that may be available under federal law (see here for more).

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.