More legal liability for health-care facilities?
What COVID-19 liability protections for nursing homes, hospitals in NY could be changed
ALBANY — Health-care facilities could face more legal liability due to COVID-19 in New York under a bill signed into law late Monday by Gov. Andrew Cuomo.
The measure would narrow the scope of immunity liability due to coronavirus care at New York hospitals and nursing homes.
The bill, passed July 23, would change a law passed in April that requires either gross negligence or intentional misconduct by the health-care facilities to prove liability.
The change would prospectively protect healthcare professionals who are directly diagnosing and treating COVID-19 patients from legal action, but it would allow lawsuits against facilities in cases that do not involve direct treatment of the virus.
For example, advocates said, it would allow loved ones to take legal action if any facility failed to prevent a patient from contracting COVID-19, such as not properly isolating nursing home residents or hospital patients before they got the virus.
“The issue addressed in this legislation has had a profound impact on both my community and my family,” Assemblyman Ron Kim, D-Queens, who sponsored the bill, said in a statement.
“This legislation will ensure that New Yorkers have a right to recourse should they encounter neglect or misconduct by unscrupulous health care providers or facilities."
Some lawmakers, however, said the bill doesn't go far enough, particularly in only allowing lawsuits in future cases — not those that already occurred.
And it comes amid ongoing scrutiny of New York's coronavirus response. Lawmakers were holding a hearing Monday on the handling of cases in nursing homes.
Addressing COVID legal liability
More than 6,500 people died in nursing homes in New York due to COVID-19, or about one-quarter of the state's 25,000 deaths.
Gov. Andrew Cuomo has been criticized for not better protecting nursing home residents, particularly a March 25 directive that allowed COVID patients to either return or move to nursing homes.
The order was overturned in May, but Cuomo and a state report last month contended the spread in nursing homes was not the result of the directive, but largely because of staff and visitors unknowingly bringing the virus into the facilities.
Separately, as part of the state budget in April, lawmakers approved a measure inserted by Cuomo's office to limit the potential liability of hospitals and nursing homes treating COVID patients.
New York was among a number of states that passed laws at the urging of the health-care industry to require either gross negligence or intentional misconduct to prove liability.
While critics said the law creates a difficult standard to reach if victims' families take their cases to court, supporters said health-care workers have been operating in an unprecedented situation and shouldn't have to worry about potential liability.
“With the exception of intentional criminal conduct, recklessness, and gross negligence — which the law properly doesn’t cover — hospitals and their workers should not be second-guessed for trying to save as many lives as possible,” Brian Conway, a spokesman for the Greater New York Hospital Association, said in June.
What might change for COVID liability
Cuomo said last month he believed the bill passed by the Legislature is consistent with what was approved in the budget. He didn't say whether he would sign it.
Cuomo said hospitals had "legitimate concern" over legal liability due to COVID-19 as they had to increase capacity, expand staff and share resources.
"They just wanted to make sure that we were doing things never done before that they didn’t have liability because of it," he told reporters.
The bill last month, he said, "is consistent with that because it says you can be liable for negligence outside of the COVID circumstance. Just because we’re dealing with COVID doesn’t excuse negligence or liability on something having nothing to do with COVID."
Still, Sen. Alessandra Biaggi, D-Pelham, Westchester County, pressed for the April liability protections to be rolled back and voted against the bill last month, saying it doesn't go far enough to help families who lost their loved ones due to COVID.
She said the immunity provisions apply to any treatments provided during the COVID outbreak, whether related to the virus or not. The bill, however, would only address COVID-related cases prospectively.
"Not only does this fail to give recourse to the thousands of families who have lost loved ones to COVID, it does not account for the budget language that retroactively took away the rights of New Yorkers who visited a doctor for non-COVID related care," Biaggi said in a statement.
"The bottom line is that we have failed to do our job to protect the rights of all New Yorkers — the fight for justice and accountability continues.”
Kim said the bill is a first step.
For example, he wants to create a Victim’s Compensation Fund for COVID-19 families who lost loved ones and pledged additional legislation after the set of hearings started Monday on nursing home deaths.