Both nursing homes and hospitals could face “far-ranging consequences” if a COVID-related lawsuit against a New York long-term care facility allows retroactive use of the state’s repeal of pandemic liability protections against the provider.
The lawsuit revolves around Vivian Zayas, who is seeking to hold Our Lady of Consolation Nursing & Rehabilitative Care Center in West Islip, NY, liable for the COVID-19 death of her mother last year. Her mother’s death happened before the state, in April, repealed an immunity measure shielding nursing homes, other healthcare businesses and workers from COVID-related lawsuits.
Zayas, however, wants the repeal to be retroactively applied to March 2020 so the lawsuit can move forward, the New York Post reported.
The Healthcare Association of New York State and Greater New York Hospital Association jointly filed a brief in support of the nursing home late last week. The groups warned that retroactively applying the repeal “would have far-ranging consequences, including potentially inhibiting the state’s response to future pandemics and mass-casualty events.”
“Finding the [Emergency or Disaster Treatment Protection Act’s] repeal to be retroactive would expose those individuals and institutions who relied on the EDTPA’s legal protections to criminal and civil liabilities that the Legislature never intended,” the group’s lawyers, Henry Greenberg and Zackary Knaub, wrote.
“As New York turns a corner on its recovery from this devastating disease, courts, in deciding cases arising out of the pandemic, should not forget the important purpose that immunity statutes like the EDTPA play in allowing healthcare professionals and institutions to preserve the lives of those affected by COVID-19 without fear of liability,” they added.
