New state malpractice law, born in crisis, now drawing pushback

Monday, June 29, 2020

By Michael Gormley

ALBANY — On March 23 New York faced a crossroads during the height of the COVID-19 pandemic as hospitalizations increased by 2,635 in one day and projections showed the state would need 110,000 beds and additional nurses and physicians to staff them in a system that only had 53,000 statewide.

The state put out a call for 1.2 million additional health care workers to come to New York and for retired New Yorkers with lapsed health care licenses to return to work. Gov. Andrew M. Cuomo then issued an executive order that allowed these qualified but unlicensed workers to operate, including immunity from most malpractice lawsuits during the crisis for them and the hospitals for which they worked. It also gave the same immunity to all hospital workers.

A little over a week later, on April 3, the immunity clause became law as part of the state budget, and extended the protection to nursing homes and their workers.

Now, some attorneys and legislators say the law raised the bar for malpractice claims too high, leaving patients and their relatives without recourse in the event of mistakes that result in harm or death.

Patients or their survivors must now prove “gross negligence,” rather than just an avoidable error. The state Court of Appeals defines gross negligence as “intentional wrongdoing … (that) evinces a reckless indifference to the rights of others.”

“There is no justification for that,” said Assembly Health Committee Chairman Richard Gottfried (D-Manhattan). Gottfried said the law is so broad that it would provide immunity to a radiologist who failed to detect breast cancer, or a child’s tonsillectomy that went badly because of error. 

The law is in effect for as long as Cuomo continues his state of emergency, which is expected to run into the fall. Meanwhile, Gottfried is co-sponsoring a bill to repeal it. And Senate Health Committee Chairman Gustavo Rivera (D-Bronx) plans hearings “to delve deeply into what happened and determine responsibilities.”…

“Generally, regarding front-line workers, the law was not really needed because winning a negligence claim in an emergency situation (against an individual) like this is almost impossible,” said Joanne Doroshow, an adjunct professor at New York Law School and founder of its Center for Justice & Democracy.

She said 25 states passed some version of immunity for health care workers and the facilities where they worked, but few also covered nursing homes.

“Nursing homes should never have been given immunity,” Doroshow said. “Abuse and neglect is rampant in nursing homes in the best of situations, when state inspectors and their families have access. No access and no accountability is a lethal combination … my understanding is the lobbyists for the nursing home industry were in there early with hospitals.”

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