Key Takeaways

• New York State has advanced legislation that would substantially limit health care civil liability immunity pertaining to COVID-19 so as not to include COVID-19 “prevention” services

• The revisions are significant to nursing homes where potential litigation may focus on COVID-19 mitigation and prevention efforts rather than direct care or treatment of the virus

• The legislation is not retroactive, limiting the adverse implications of the amended provisions

On July 23, 2020, New York State advanced legislation that would substantially limit health care civil liability immunity pertaining to COVID-19 originally afforded under the Emergency or Disaster Treatment Protection Act.  Specifically, the legislation amended the definition of “health care services” eligible for immunity by removing “prevention” of COVID-19 from the scope of services subject to immunity. The amendment is significant because immunity is now only afforded to good-faith acts or omissions pertaining to the diagnosis or treatment of COVID-19 or the assessment or care of an individual with a confirmed or suspected case of COVID-19.

Further, the amended legislation struck the care of individuals presenting to a health care facility or professional during the COVID-19 emergency declaration from the definition of “health care services” subject to potential civil liability immunity.

The revisions are significant to nursing homes where potential litigation may focus on COVID-19 mitigation and prevention efforts rather than direct care or treatment of the virus.  However, the legislation is not retroactive, which limits the adverse implications of the amended provisions.

For more information regarding New York State’s legislation, please contact:

• Caroline J. Berdzik
• Jonathan L. Berkowitz
• Lisa M. Robinson
• Or another member of our Health Care or Long-Term Care practices