A New York state appellate court has ruled that an April 2021 state law repealing a March 2020 grant of immunity to nursing homes over their handling of COVID-19 patients is not retroactive.
The ruling means a nursing facility in the Village of Philmont, Columbia County, has immunity and cannot be sued over its treatment of a patient who resided in the home from July 2017 until April 2020, when she died as a result of contracting COVID-19.
The court further determined that the facility was entitled to the civil immunity because the late patient’s estate failed to provide evidence of gross negligence or willful misconduct by the nursing facility.
The estate of the late Janis H. Tipple brought a negligence action against Pine Haven Nursing and Rehabilitation Center, alleging a failure on the part of the nursing home to take the proper steps to protect her from COVID-19.
The nursing home moved to dismiss the complaint, arguing that it was entitled to immunity under the state Emergency or Disaster Treatment Protection Act (EDTPA) that was enacted in March 2020. The EDTPA conferred immunity for health care services rendered in response to the COVID-19 pandemic, with limited exceptions.
The EDTPA was later repealed in April 2021, thus presenting the court with the question of whether the legislation repealing the EDTPA should be applied retroactively, thereby exposing defendants to potential liability.
The estate argued that the nursing home lost its immunity when the EDTPA law was repealed.
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The nursing home argued that it retained its immunity because the repeal was not retroactive. It also defended the COVID-19 patient care it provided.
The court first noted that there is a presumption against retroactivity in legislation, particularly in the absence of plain legislative intent to the contrary. Neither the EDTPA law nor the law repealing it contained any mention of retroactivity.
In reviewing legislative floor debates, which the court said “may be accorded some weight in the absence of more definitive manifestations of legislative purpose,” the court concluded that on balance, the legislative history of both the EDTPA immunity law and its repeal weighed against retroactive application.
The estate argued that retroactivity is appropriate because the repeal was remedial in nature. However, the court stated that “classifying a statute as ‘remedial’ does not automatically overcome the strong presumption of prospectivity since the term may broadly encompass any attempt to supply some defect or abridge some superfluity in the former law.”
“Based upon all of the foregoing, and noting that the retroactive application of the repeal of the EDTPA would merely punish healthcare providers ‘for past conduct they cannot change — an objective that has been deemed illegitimate as a justification for retroactivity,’ we hold that the repeal of the EDTPA was not retroactive,” the court wrote.
Unsupported Allegations
Tipple’s estate further argued that even if the repeal of the EDTPA was not retroactive, Pine Haven was not entitled to invoke the protections of the EDTPA because its terms did not apply to the care it provided. The EDTPA immunity did not cover damages or injuries caused by willful or intentional criminal misconduct, gross negligence, reckless misconduct and/or intentional infliction of harm. Decisions resulting from a resource or staffing shortage did not fall into this exception.
The court rejected this argument, finding that the estate failed to submit evidence demonstrating the existence of a cause of action and that it could not rely only on “unsupported factual allegations.”
The court found that Pine Haven had “unquestionably” established that its health care services were based on informed decision-making, availability of products as well federal and state regulatory guidance and that they were provided in good faith, as required to demonstrate an entitlement to immunity from civil liability. The court said a two-page excerpt of Tipple’s medical chart submitted in opposition failed to sufficiently refute Pine Haven’s sworn allegations regarding her care.
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