When COVID-19 hit New York City, lawmakers moved quickly to give hospitals and nursing homes comprehensive immunity for virtually all negligent acts, including overt medical misconduct.
When the legislature realized that this immunity was far too broad, it reduced it. See Cuomo Signs Bill Limiting Medical Immunity beginning August 4th.
The key element of what will entitle doctors to immunity now is whether they were “affected” by the pandemic. The relevant legal time difference is March 7th to August 3rd. And yes, “affected” is vague.
When this immunity restriction came in, I wrote about what the future would bring for a nursing home or a medical malpractice suit brought within the key period:
Lawsuits and Movement Practices in Brief: Arguments that any case of medical or nursing misconduct for any reason that occurred between March 7, 2020 and August 3, 2020 should be immune as defenders scramble to get a COVID hook to argue.
But now Governor Andrew Cuomo has turned the arguments of defenders of wrongdoing across the state on its head.
How did he do it? In an interview with CNN, he said that at the height of the COVID-19 pandemic, New York hospitals were “never overwhelmed.”
Yowza! Therefore, hospital attorneys defending cases of wrongdoing will obviously all want to claim that their hospital or doctor is “affected”. But the governor only said the hospitals are “never overwhelmed”.
Now you can try to analyze the differences between these two sentences, but the final answer will undoubtedly lead to intense factual disputes.
This may well mean that attempts to quickly win victories on dismissal requests – claiming that there is no cause for complaint based on the pleadings alone – can easily be shot down.
But are they dismissed for lack of evidence, as is the case with recapitulative judgments? There does not have to be a factual dispute in order to make a summary judgment. Because factual findings apply to juries, not judges.
All thoughts that such layoffs will come easily should now be brushed aside. If the plaintiff brings claims within the applicable time limit, claims should be added that the treatment was not affected by the pandemic.
And defense lawyers shouldn’t believe that a final affidavit from a hospital administrator will easily win them over. Because I don’t think they will.
We’re going to go somewhere where we discover that we normally don’t go: the lawyers are now going to investigate who else is in the hospital, what types of patients they were, how many beds were filled, etc. to prove the care was ( not) “affected” by the pandemic.
A simple example: The patient goes to a New York hospital for COVID in late June. The patient needs medication for the condition. The wrong dosage is given by a young intern who just started on July 1st – instead of 0.5 mg, it’s 10.0 mg. Was the treatment “affected” by the pandemic?
The hospital argues that the patient was only in the hospital due to COVID.
The patient’s attorney argues that the hospital was not understaffed and was walking around like headless chickens. There were actually empty beds and staff as the NYC pandemic slowed.
The governor has just turned over a big fat factual dispute to litigation across the state that perhaps thought the matter could easily be resolved in favor of doctors.
The discovery can take place where the discovery has not taken place before.