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Making Hospitals and Nursing Homes in New York Liable Again: post-Covid-19 surge lifting of immunity

Posted by Frederic Abramson | Aug 24, 2020 | 0 Comments

New York State was one of the earliest in our nation to face the surge of Covid-19 this past Spring.  Back on January 30, 2020 the World Health Organization declared that Covid-19 was indeed a public health emergency on an international scale.  As hospitals and nursing homes in this state struggled to manage the onslaught of this novel virus, patients and residents of these facilities did not necessarily receive optimal or even standard practices care.  

We were at war, or so it felt.  Accordingly, broad measures were passed urgently providing immunity or protection from lawsuits claiming injuries and deaths due to sub-optimal care and beneath standard practices care.  These protections were not meant to be permanent and alas their time has come.  

The Senate introduced NYS Senate bill 8835 last month to roll back the broad immunity provided at the height of the pandemic.  What does this mean now? 

If you know someone, or you are that someone, who did not or is not receiving optimal care in either a hospital or nursing home there are options and remedies now.  There are a few important provisions to take note of at this juncture in time in this crisis.  First, according to the new law, which Governor Cuomo recently signed, hospitals and nursing homes may be sued for medical services and care provided which is not related to Covid-19.  Furthermore, the lifting of immunity is to run until NYS is no longer in a state of emergency.  NYS has been in a legal state of emergency since the outbreak.  Governor Cuomo declared " NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and the Laws of the State of New York, hereby find, pursuant to Section 28 of Article 2-B of the Executive Law, that a disaster is impending in New York State, for which the affected local governments are unable to respond adequately, and I do hereby declare a State disaster emergency for the entire State of New York. This Executive Order shall be in effect until September 7, 2020"

The broad immunity is being rolled back because these institutions must be held accountable.  When poor care is delivered which leads to harm there must be a remedy at law.  The rights of patients and residents are now being restored.  With NYS out of the intense crisis, we can return to law and order.  Law and order dictates that patients and residents of hospitals and nursing homes will be protected from harm, negligence, lack of care and irresponsibility.  As we look forward, this law also lifts immunity in failing to prevent the spread of Covid-19 which can be seen as an important measure in holding our health care providers accountable in failing to take steps necessary to prevent the spread of the virus.  Rest assured, hospitals and nursing homes are upset with the legislatures's move.  Rest assured, in balancing the equities this was a move in the right direction in protecting the health and well-being of our state's many residents.   

About the Author

Frederic Abramson

I am the principal of The Law Office of Frederic R. Abramson. Im an experienced litigator with experience in a wide range of legal areas. My practice encompasses civil litigation, business law, personal injury and real estate. I have handled litigation matters from inception to trial. I have co...

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