ALBANY, NEW YORK – According to several news sources, including newsday.com and lohud.com, the New York State Senate granted final legislative approval to repeal Governor Cuomo’s immunity measure that protected health care facilities, hospitals, and nursing homes from malpractice lawsuits during the coronavirus pandemic. This measure would terminate immunity for malpractice cases that happen once the new bill becomes law. This bill (A3397/S5177) does not affect past medical malpractice cases retroactively. The legislation will now be sent to Governor Cuomo to sign. Once the bill is signed, the bill becomes law.
According to the Newsday article, New York Senate Bill S5177 was sponsored by Senator Allesandra Biaggi, a Democrat Senator from Mount Vernon, New York. The bill passed the New York Senate unanimously and would repeal the “Emergency Disaster Treatment Protection Act,” which grants immunity to health care providers and operators from liability stemming from decisions, omissions, and actions associated with the medical treatment of people during the coronavirus pandemic. Assembly Bill A3397 was sponsored by Assemblyman Ron Kim, a Democrat from Flushing, New York. The New York State Assembly passed Assembly Bill A3397 on March 4, 2021.
Senator Allesandra Biaggi stated that the immunity granted to hospitals, nursing homes, and other health care facilities “stripped thousands of grieving families of their right to seek legal recourse.” Senator Biaggi also cited state Attorney General Letitia James’ report that the immunity bill enacted by Governor Cuomo could have given health care facilities an incentive “to cut corners to increase profits.” Senator Biaggi believes that the immunity measure was always intended to shield corporate leadership.
The immunity measure became law by way of Governor Cuomo’s executive order. The Governor stated that the immunity measure was essential because health care professionals, hospitals, health care facilities, nursing homes, and medical clinics were treating patients under tremendous amounts of stress, and New York’s hospital system was on the brink of collapse. The Governor’s executive order tried to hold health care facilities and medical professionals harmless from errors committed during the COVID-19 pandemic “as long as the mistakes weren’t intentional or gross negligence or illegal.”
However, Governor Cuomo’s immunity measure also prevented families who tragically lost loved ones due to malpractice from being able to hold those responsible civilly liable. The immunity measure also caused a lobbying power struggle in Albany. Governor Cuomo’s immunity measure was opposed by the Trial Lawyers Association, who believe victims have a Constitutional right to a jury trial in civil cases under the Seventh Amendment to the United States Constitution. Amendment VII is also part of the Bill of Rights. The immunity executive order was praised by hospital groups, such as the Greater New York Hospital Association, whose members would likely financially benefit from the civil lawsuit protections granted. The Greater New York Hospital Association has also publicly stated that they “strongly oppose this push to repeal the law.”
Beth Finkel, AARP’s New York State Director, praised the legislators for voting to repeal the Governor’s immunity provisions.
According to the National Library of Medicine, recent research studies of medical errors have concluded that 251,000 people in the United States are killed by medical errors each year. The studies also reported that medical errors are the third leading cause of death in the United States.
Governor Cuomo has not stated if he would veto or sign the bill into law. However, the Democrats control both the Senate and the Assembly have more than enough votes to override the Governor’s veto.
The New York State Trial Lawyers Association (NYTLA) has stated that victims and the families of victims are one step closer to holding hospital and nursing home operators legally accountable for care by repealing the immunity measure. The NYTLA also stated that patients’ and nursing home residents’ lives are at risk when nursing homes or hospitals cannot be held liable for being negligence. For example, loved ones would be able to take legal action when a facility failed to prevent a resident or a patient from contracting the coronavirus by failing to properly isolate hospital patients or nursing home residents prior to contracting COVID-19.
The legislative package also attempts to ensure nursing home residents receive information about the Long-term Care Ombudsman Program, requires the patients’ bill of rights to be offered in New York’s six commonly spoken languages, and makes nursing home assets and operations information publicly available.
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