On March 26, 2021, the New York State Senate passed a bill to repeal Article 30-D of the Public Health Law, also known as the Emergency Disaster Treatment Protection Act (EDTPA). The EDTPA, signed into law on April 6, 2020, immunized nursing homes and other providers from civil liability for negligent acts or omissions committed during the COVID-19 crisis, retroactively effective to March 7, 2020. If signed into law by New York Governor Andrew Cuomo, the bill would immediately strip nursing homes, hospitals and other providers of all such protections. That would mean COVID-19-related claims against health care providers would be litigated as typical malpractice cases.

That begs the question whether it makes sense to continue the immunity protections provided to our health care heroes a year ago. Some may argue in the negative because the medical community now knows much more about COVID-19 than it did early in the pandemic, including effective ways to protect against transmission and methodologies for in-patient treatment of severe cases. Some may even argue that during the pandemic there emerged a standard of care with respect to treating and managing patients in the era of COVID-19.

However, there still remain a panoply of unknowns, such as the increased circulation of known variants with more infectious and deadly components; the nearly inevitable potential for new emerging variants; the unknown duration of vaccine efficacy; and the still unknown impact the virus and its variants may have on children ‒ particularly until the vaccine is available to them.

Further, at present, experts caution that the United States may be at the precipice of a fourth surge, as supported by the climbing infection rate, which appears to trend in states that have abandoned proven protective measures and even those that have merely relaxed capacity caps and other precautionary measures. Additionally, a younger patient population demographic ‒ those most likely to be parents of school-aged children ‒ now accounts for the majority of hospitalizations. Management may be affected by these patients’ age bracket.

A Look Back & the Implications

In contrast, at the beginning of the pandemic, in March and April 2020, virtually nothing was known about how the novel virus was transmitted, there was no standard or even known effective treatment, and provider resources were stretched to the brink largely because of dire overcapacity issues. There was no standard of care on the front lines at ground zero, New York, because this situation had never before been encountered. Given those facts, it is difficult to rationalize why proponents of the New York bill additionally advocate the repeal of the three weeks of retroactively applied immunity the EDTPA provides from the near start of the crisis on March 7, 2020, until the EDTPA became effective on April 6, 2020.

As a practical matter, lawsuits brought for alleged malpractice during that time would face the significant hurdle of demonstrating a departure from the standard of care when there was no standard. Thus, some may argue consideration of a retroactive repeal would be revealing of politics divorced from reason. Even worse, it could result in prolonging suffering for families that would then be afforded the right to sue for purported departures that never existed, go through the entire process and have no real basis to recover. Additionally, it would further burden nursing homes and hospitals to defend suits that could never be won.

A Tale of Two States

Meanwhile, and as is the case with any number of issues, Florida lawmakers go in the opposite direction from those in New York, and pass legislation to insulate health care providers from COVID-19-related law suits, providing even greater protections for their health care providers now than did the EDTPA for New York health care providers at the height of the pandemic.

With Florida Governor DeSantis and House members demonstrating respect for health care providers and the challenges they faced throughout the pandemic, the Florida legislation provides significant obstacles for a plaintiff to overcome in litigating a malpractice claim. For example, a plaintiff must produce at the outset of litigation a particularized complaint, and the burden of proof is heightened to require the plaintiff to demonstrate gross negligent or intentional misconduct. Additionally, the cause of action must have accrued by March 29, 2021, and in cases relating to transmission, diagnosis or treatment of COVID-19, the statute of limitations is one year from the date of death, the date of hospitalization related to COVID-19 or the first diagnosis of COVID-19, whichever comes first. That means all COVID-19 claims in Florida will be time-barred after March 29, 2022. Enumerated affirmative defenses include substantial compliance and good faith, which is not defined in the statute.

While it is clear that health providers require immunity protection for their critical and heroic roles in providing care and treatment in these unprecedented times, the divergence in thinking in New York and Florida reflects the political climate’s influence on what will be deemed a reasonable scope for that protection.