Governor Cuomo recently signed into law the Emergency or Disaster Treatment Protection Act (“EDTPA”).[1] While the EDTPA grants healthcare professionals and facilities “immunity” from most civil and criminal liability if the health care facility or professional was arranging for, or providing health care services, pursuant to a COVID-19 emergency rule or as required by law, what are professionals and facilities actually immune from?
The EDTPA provides that immunity applies if (1) the facility or health care professional is acting in good faith, and (2) the health care professional or facility did not act willfully, intentionally or in a manner that constitutes criminal misconduct, gross negligence, reckless misconduct or intentional infliction of harm.
However, other than referencing defined terms like “gross negligence” and “reckless disregard,” the statute largely does not address what is meant by them. Nor does it provide guidance on how those standards should be applied to any future claims against medical professionals and facilities for actions taken and decisions made during the current pandemic.
What is “gross negligence” and “reckless disregard”?
It has become painfully clear that COVID-19 has had a disproportional impact on nursing homes and other medical facilities. While the immunities contained in the EDTPA are potentially significant, they are not absolute.
Predictably, there is already a debate between advocates for health care professionals and facilities who contend that the protections do not go far enough, and plaintiff’s attorneys and resident advocates who allege that the statute will lead to the cutting of corners, and leave affected residents and their families without any recourse. Both sides are already preparing for a wave of new lawsuits when the pandemic abates to probe and define the scope of these immunities.
Given that this crisis is unfolding in real time, we do not yet have any firm direction or insight from the courts how they will define and apply “gross negligence” or “reckless misconduct” against the backdrop of COVID-19. However, the concepts of both gross negligence and reckless misconduct have long been employed by courts in a variety of other situations. These historical precedents provide at least some guidance how courts are likely to apply these standards vis-à-vis the EDTPA.
New York’s highest court, the Court of Appeals, has held that gross negligence is “conduct that evinces reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing.”[2] Courts look to both the gravity of a person’s deviation from a reasonable standard of care, as well as his or her subjective state of mind.
To that end, gross negligence may be found either “where there is a reckless indifference . . . or an intentional failure to perform a manifest duty to the public, in the performance of which the public and the party injured have interests.”[3]
Put another way, in order to rise to the level of reckless disregard, a person’s conduct must show actions that lack “even slight care” or are “so careless as to show complete disregard for the rights and safety of others.
Application to the EDTPA
Clearly, in order to demonstrate gross negligence or reckless disregard under the EDTPA, more than just a mistake, error or oversight will need to be shown. For example, the statute specifically states that actions or decisions that result from shortages in staffing or resources will not be considered gross negligence or reckless disregard.
Unfortunately, beyond staffing, the statute does not provide specific examples or guidance on the types of actions or deviations – even in a pandemic – that rise to the level of gross negligence or reckless disregard.
Is it grossly negligent for a nursing home employee to not wear a mask, and subsequently infect a resident (albeit unintentionally)? Ostensibly, that employee and his supervisor would be aware of the risk of not wearing a mask, and the danger it poses to others (especially to high-risk nursing home residents). As such, it is not hard to envision that conduct being considered intentional or showing a complete disregard for the safety of others.
Conversely, what if the facility ran out of masks or other Personal Protective Equipment (PPE) due to the supply shortages faced throughout the nation (and the world)? Would an unmasked employee in that scenario constitute gross negligence or reckless disregard? It probably depends on whether the absence of PPE results solely from the unanticipated worldwide shortages and supply issues, and not from internal economic driven considerations.
What if the facility has sufficient masks and other PPE, but an employee uses it improperly? To the extent the facility has training processes and protocols in place addressing the proper use of PPE, an error by an employee(s) in donning the PPE probably lacks the intentional or indifference elements to meet the heightened threshold. However, what if the training is haphazard and inconsistent, and employees are largely left to figure it out themselves? At some point, a lack of emphasis on the proper use of PPE probably does become “gross negligence” or “reckless disregard.”
Another question beyond the scope of this article, is whether insurance companies will attempt to deny coverage for gross negligence based upon exclusions in the policy. Sufficed to say, facilities and providers should be well-versed in what is (and is not) covered in their respective insurance policies to avoid surprises when making an insurance claim.
Bottom line, there is simply not going to be an easy reference guide with a list of actions and/or deviations that constitute gross negligence or reckless disregard, and those that do not. However, professionals and facilities must realize that the immunities provided for by the EDTPA are not unlimited. As always, the goal should be to provide the highest level of care possible – recognizing that immunity may very well not exist for significant deviations from the standard of care.
Underberg & Kessler stands ready to assist both health care providers and facilities in navigating these uncharted waters in implementing best practices to avoid future claims, as well as addressing and defending claims that are made.
If you have any questions, please contact us here or at 585-258-2800.
You can view more COVID-19-related posts in our COVID-19 Resource Area here.
[1] On April 23, Margaret Somerset, Esq. wrote an article entitled “How Does the New Immunity Law in NY Apply to Health Care Providers During the COVID-19 Emergency?” discussing the EDTPA [2] Colnaghi, U.S.A., Inc. v. Jewelers Protection Services, 81 N.Y.2d 821 (1993) [3] Int’l Mining Corp. v. Aerovias Nacionales de Colombia, S.A., 57 A.D.2d 64 (1st Dept. 1977)