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NY State Removes Shield Protecting Nursing Homes from Lawsuits Relating to COVID-19

By Rheingold Giuffra Ruffo Plotkin & Hellman LLP

New York Gov. Andrew Cuomo signed a bill into law on April 6, 2021 that repeals legal immunity that the state had granted to nursing homes during the COVID pandemic.

Effective immediately, nursing homes and other healthcare facilities can be held civilly and criminally liable for treatment of individuals with COVID-19 after the bill was sponsored and championed by critics including state senator Alessandra Biaggi.

The reversal comes in the wake of continued criticism of Governor Andrew’s Cuomo’s handling of the pandemic, especially in terms of under reporting nursing home deaths related to COVID 19. 

The immunity from civil lawsuits and criminal prosecution had been granted last year under Article 30-D of the Public Health Law, known as the Emergency or Disaster Treatment Protection Act, as a part of last year’s budget while the virus spread through the state.

But the new bill states that it ‘repeals Article 30-D of the Public Health Law with the intent of holding health care facilities, administrators, and executives accountable for harm and damages incurred.’ 

Article 30-D egregiously uses severe liability standards as a means to insulate health care facilities and specifically, administrators and executives of such facilities, from any civil or criminal liability for negligence.’

The bill continues: ‘Repealing this article is a much-needed step to holding health care administrators accountable and doing everything possible to stop more preventable deaths from happening.’

The public outcry related to COVID-related nursing home deaths in the Empire State led many to call for Governor Cuomo’s resignation, including members of his own party.  New York Attorney General Letitia James in January found that the Cuomo administration had misled the public about the total number of nursing home residents killed by the pandemic.

According to NBC, “The New York state Health Department underreported the Covid-19 death toll in nursing homes by as much as 50 percent, the state’s attorney general charged Thursday.

More nursing home residents died from the coronavirus than the Health Department’s “published nursing home data reflected and may have been undercounted by as much as 50 percent,” Attorney General Letitia James’ investigators concluded in 76-page report.

This is unacceptable to any local or federal government.  Citizens should have the right to seek justice in civil courts when the government fails in its fiduciary duty to protect the public and keep them reasonably informed, especially during times of crisis.

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