Earlier this year, as part of an emergency budget bill aimed at funding the health care industry, New York extended liability immunity protections to health care facilities and professionals that treat or arrange the treatment of not only COVID-19 patients but also any other individuals who sought treatment during the COVID-19 emergency provided that the alleged error or omission was due to the impact of COVID-19. See S7506B / A9506. The liability immunity did not shield the health facilities and professionals from gross negligence, intentional or criminal misconduct, and intentional infliction of emotional distress.

However, in August 2020, New York’s Governor Cuomo signed legislation that rolled back the immunity extended to health care workers earlier this year. See S8835 / A10840. Specifically, the immunity as amended by the new legislation now applies only when the patient at issue is seeking treatment for COVID-19. Gone are the protections that extended the time frame (1) when the patient was seeking medical treatment to “prevent” COVID-19, (2) when the health care provider was “arranging for” health care services for a COVID-19 patient, and (3) for immunity against claims by non-COVID-19 patients who were seeking medical treatment during the state of emergency. The limited immunity took effect on August 3, 2020 (the day Governor Cuomo signed the legislation into law) and will expire when the COVID-19 state of emergency declaration expires.

Likewise, in Michigan, on March 29, 2020, Governor Whitmer signed Executive Order 2020-30, which contained a blanket liability immunity provision for licensed health care professionals and facilities that provided medical services in support of the state’s response to COVID-19. The immunity went further than New York because it protected health care workers from liability for any injury sustained by any person regardless of how or under what circumstances the injury was sustained. The only exception to Michigan’s immunity was for gross negligence. However, Governor Whitmer rescinded her Executive Order on April 29, 2020, and on August 10, 2020, she vetoed a bill that would have revived the immunity until January 1, 2021. See S.B. 899.

Impact on Clients

New York health care providers still have some protection under the amended immunity, but only in the limited circumstance when the patient at issue is seeking treatment for COVID-19 and the alleged malpractice occurs because of a COVID-19-related issue. As such, it may be difficult for a health care provider to prove both of these elements and avail itself of the immunity. Meanwhile, in Michigan, health care providers enjoyed a much broader protection for a short period of time and must now readapt to a system where there is no immunity protection for malpractice even if the alleged malpractice is caused by COVID-19. The bottom line is that health care providers in both New York and Michigan are advised to continue to provide their normal prudent care because they cannot bank on any protection from COVID-19 immunity laws.