15 June 2021: Legal Arguments For and Against Retroactive COVID Legal Immunity for Nursing Homes

NY Hospital Lobby Slams COVID-19 Nursing Home Death Suit

This report from Law 360 provides greater detail on the amicus brief filed by two of New York's hospital and nursing home operators lobbies oppositing a lawsuit filed against a nursing home by the family of COVID victim Ana Martinez. The lobbies include the Greater New York Hospital Association and the Healthcare Association of New York State. The plaintiff's lawsuit was filed by Martinez' daughter, Vivian Rivera-Zayas. The Our Lady of Consolation nursing home is the defendant in the suit.

The hospital groups on Friday said the April repeal of the Emergency or Disaster Treatment Protection Act, which had largely immunized health care providers from criminal and civil liability since its passage in March 2020, should not apply retroactively and should shield Our Lady of Consolation from Rivera-Zayas' suit.

The liability shield had given broad immunity to hospitals, nursing homes, physicians and nurses except in cases of willful, reckless or criminal misconduct or gross negligence.

The groups said finding the repeal of the law to apply retroactively would have "far-ranging consequences, including potentially inhibiting the state's response to future pandemics and mass-casualty events."

"It would signal to health care workers that the New York State Legislature and government cannot be trusted," the groups said in the brief.

"The story of the EDTPA, with its partial repeal only a few months after enactment and its total repeal one year later — before the declared emergency is even over — already runs that risk," they added. "This court should not deem the Legislature to have offered safe harbor to frontline workers and care facilities during the toughest of times, only to retroactively repeal that protection in a flurry of hindsight once the emergency began to abate."

Rivera-Zayas' attorney was ready with a counterargument:

An attorney for Rivera-Zayas, Justin Varughese, told Law360 on Monday that the repeal applies retroactively because New York lawmakers have already determined that immunity was improperly granted given Gov. Andrew Cuomo's administration's alleged undercounting of nursing home deaths.

In January, New York Attorney General Letitia James said health officials reported 6,645 nursing home deaths as of Nov. 16, when in reality those figures had been undercounted by as much as half.

"Many legislators acknowledged that they issued immunity initially under false pretenses (i.e. they didn't know the volume of the deaths due to inaccurate reporting), and they would not have issued the immunity if they had been aware of the actual statistics," Varughese said via email. "In addition, the attorney general issued a scathing report finding, amongst other things, that the liability protections may have incentivized nursing home executives to cut corners, putting both patients and frontline workers in danger."

We've previously identified Governor Cuomo's 2 April 2020 gift of legal immunity to a joint association of hospital and nursing home operators as marking the effective beginning of the Cuomo administration's cover-up of the full extent of COVID deaths among New York nursing home residents resulting from its deadly 25 March 2020 directive, which now is the subject of both state and federal criminal and civil investigations. Rivera-Zayas' lawsuit argues it is also a contributing factor to excessive COVID deaths in New York's nursing homes.