Recognizing the unprecedented reach and toll of the COVID-19 public health emergency, Governor Cuomo on Friday, April 3 signed into law a number of measures designed to shield health care professionals from civil and criminal liability for the delivery of care during the COVID-19 Emergency Declaration.
The Emergency Disaster Treatment Protection Act essentially grants qualified immunity to health care facilities, including hospitals and nursing homes; health care professionals, such as physicians, nurses and other licensed medical professionals; home care workers, COVID-19 health care volunteers, health care facility administrators and board members, from any liability, civil or criminal, arising from the care and treatment of individuals with and without COVID-19 if:
- The health care facility or professional is arranging for or providing services pursuant to the COVID-19 emergency rule; and
- The harm or damages caused by an alleged act or omission occurs in the course of arranging for or providing health care services, and the treatment of the individual is impacted by the facility or professional’s decisions or activities in response to or as a result of the COVID-19 outbreak or in support of the state’s directives; and
- The health care facility or professionals are arranging for and providing health care services in good faith.
Immunity for decisions, acts and omissions will run retroactively from March 7 to the end of the COVID-19 Emergency Declaration. The immunity also applies to volunteer organizations. As such, a volunteer organization shall have immunity from any liability for any harm or damages occurring in or at its facility arising from the State’s response to or as a result of COVID-19 emergency declaration and in support of the State’s directives.
The immunity does not extend to harm or damages caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct or intentional infliction of harm by the health care facility or professional. Importantly, a shortage of resources (such as ventilators and other vital equipment) and staffing shall not be considered reckless, willful or intentional, gross negligence or criminal misconduct.