Brooklyn Boro

NY rolls back legal immunity for hospitals, nursing homes

August 4, 2020 Marina Villeneuve Associated Press
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Nursing homes and hospitals in New York can once again be held liable in lawsuits and criminal prosecutions for care provided to patients not being treated for COVID-19 under a law signed by Gov. Andrew Cuomo Monday.

Nursing homes, hospitals and other health care facilities were granted a broad legal shield to fend off lawsuits and criminal prosecutions over care provided to all patients during the pandemic in an April state budget provision that Cuomo and lawmakers approved and well-heeled hospital lobbyists said they drafted.

Nursing homes and hospitals will no longer have immunity for care not related to COVID-19 provided from now until the state’s COVID-19 emergency declaration ends.

New York is still shielding hospitals or nursing homes from immunity for the care they provide while treating or diagnosing patients with COVID-19, as long as the care was “impacted” by efforts to respond to the pandemic and comply with state directors.

New York’s immunity applied retroactively to the start of the pandemic, and didn’t protect nursing homes and hospitals from damages or harm caused by gross negligence, intentional criminal or reckless misconduct, or intentional infliction of emotional distress. And at a time when the virus raged in New York, the provision didn’t allow legal action for staffing or equipment shortages.

But now, with the virus surge tamed and the state reckoning with the nation’s highest death toll — more than 25,000 confirmed coronavirus fatalities statewide, including nearly 6,600 in nursing homes and other long-term care facilities — many lawmakers had second thoughts.

A patient was wheeled into Cobble Hill Health Center by emergency medical workers in Brooklyn on April 17. Photo: John Minchillo/AP File

Advocacy groups representing nursing home residents, plaintiffs’ lawyers and several lawmakers argued New York’s immunity law was much too broad and made it too difficult to hold the homes accountable, benefiting them at the expense of their vulnerable residents.

The new law doesn’t go as far as some backers originally sought. AARP State Director Beth Finkel urged New York to fully repeal legal immunity for nursing homes, retroactive to the start of the pandemic.

“If anything, they need this right now more than ever; for much of the pandemic, families and long-term care ombudsmen were barred from visiting and nursing home inspections were halted,” Finkel said. “There were literally no objective eyes watching what was happening in these facilities, while the facilities were let off the legal hook for any abuse, neglect and substandard care.”

Nursing homes and hospitals have criticized the push to roll back immunity. Some say it could hamper care during potential future coronavirus surges that could again stretch health care to the limits, with volunteers and medical students caring for patients in makeshift hospitals.

At least 15 states have provided health facilities and/or providers some safeguard from lawsuits arising from the coronavirus crisis, but New York went unusually far.

The legislation was uncommon in applying to both lawsuits and criminal prosecutions during the COVID-19 emergency.

Lawmakers promise they’ll take more steps to pursue accountability for New Yorkers.

“This bill is only a first step, however, and we must take further action to hold to account any malfeasance that occurred during the height of the COVID-19 crisis,” reads an online summary of the bill posted on the state Senate’s website.

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