Written by: Jesse Minc Portrait Jesse Minc

The Coronavirus (COVID-19) pandemic has proven so far to be among the most difficult periods in the history of the United States, and New York State has certainly not been spared.  While the pandemic has rattled the psyches of people around the world, and done catastrophic damage to the world economy the full extent of which will not be fully understood for years, it has also revealed the medical and hospital systems of our nation to have been grossly underprepared and under-resourced for such an event.

By now, every New Yorker has heard the pleas of Mayor Bill DiBlasio, Governor Andrew Cuomo, Dr. Anthony Fauci and countless other government officials for urgent assistance, most acutely from the nationwide medical community.  Every New Yorker has also, no doubt, read or seen accounts of doctors, nurses and other healthcare workers who are working on the front lines of this crisis, trying to treat the sick and save lives, who describe the conditions in New York’s hospitals as equivalent to what one might imagine would be seen in a war zone.  By all accounts, medical staffing is too thin, and critical medical supplies required to save lives (most importantly, ventilators) are in alarmingly short supply.

In an attempt to bolster New York State’s ability to respond to the Coronavirus crisis, on March 23, 2020, Governor Andrew Cuomo issued an executive order pursuant to New York Executive Law Sections 29-a and 29-b providing immunities from civil lawsuits, regulatory enforcement proceedings and criminal proceedings for licensed healthcare providers who (i) provide medical services in support of New York State’s response to the Coronavirus (COVID-19) outbreak, (ii) act reasonably and in good faith to keep accurate medical records relating to the treatment of Coronavirus (COVID-19) patients, (iii) may come out of retirement without an active medical license/registration to aid in the treatment of Coronavirus (COVID-19) patients, and (iv) may travel to New York from another state to assist New York in its efforts to battle the Coronavirus (COVID-19).  The executive order only allows for civil, regulatory or criminal liability for grossly-negligent or intentional conduct in connection with the practice of medicine related to the Coronavirus (COVID-19) outbreak.  Though it does not address non-Coronavirus-related medical treatment, it is likely that every single defendant in every single medical malpractice lawsuit that relates to treatment rendered during the time period during which the Coronavirus (COVID-19) Pandemic is ongoing will raise this as a defense.

This unprecedented grant of civil, regulatory and criminal immunity is intended to reassure medical providers that they will not be sued or prosecuted for actions taken in good faith to help New Yorkers affected by the Coronavirus (COVID-19) pandemic, which is a bona-fide emergency during which the usual rules of medical treatment cannot possibly be followed.   The reasons that this immunity is necessary include, perhaps most importantly, that under the circumstances, there are simply not enough key medical supplies (e.g., ventilators) and knowledgable medical workers (e.g., pulmonologists, infectious disease specialists) available to treat the influx of patients (the number of patients seeking medical care at a given moment is orders of magnitude larger than under normal circumstances), and doctors are being forced to ration care and choose to save the lives of certain patients by sacrificing others.    This is generally not a decision that healthcare professionals have to make; and it arguably contravenes the ethical maxim of “first, doing no harm” that doctors live by under normal circumstances.

To understand why this immunity is necessary, and how it works, consider the following example:  A patient comes into a New York hospital’s emergency room with shortness of breath which develops into respiratory failure.  The patient needs to be sedated and put on a ventilator, or she will die.  The hospital staff, despite being aware of the objective signs that the patient is experiencing acute respiratory failure, delays in rendering treatment to the patient and does not order that she be immediately sedated and placed on a ventilator.  Within four hours of arriving at the hospital, the patient suffers an acute cardiac arrest secondary to the respiratory failure, and dies.

Under normal, non-Coronavirus Pandemic circumstances, the patient’s family would have a cause of action for medical malpractice, wrongful death and conscious pain and suffering against the hospital and doctors who failed to promptly diagnose and treat the patient’s condition.  In such case, under normal circumstances, a strong argument would be made that the doctors were negligent in failing to promptly place the patient on a ventilator in response to obvious signs that one was required.  However, in the context of the Coronavirus Pandemic, it may be he case that the medical staff – even if they know that a patient needs a ventilator – is unable to put the patient on a ventilator because none are available (all of the ventilators available in the hospital are in use by other acutely-ill patients), or that the proper specialists are unavailable to see and diagnose the patient because they are busy treating other patients with the same symptoms and cannot treat this particular patient until it is too late to save her.

If you or a loved one have been the victim of medical malpractice, or have been injured due to negligence, call Jesse Minc at (718) 354-8000 for a free consultation.

Category: Medical Malpractice