Recently, New York’s Department of Health (DOH) issued fines to multiple nursing homes in New York for infection control issues, including for providing COVID-19 care without gloves and adequate personal protective equipment (PPE) for their staff.
Reports state that 77 nursing homes in the state were fined for similar infection control issues. The largest fine of $50,000 was to a facility in Buffalo, NY, where DOH inspectors found COVID-19-positive patients on the same floors with residents not known to have the virus.
As discussed in previous blog posts, New York’s Emergency Disaster Treatment Protection Act (EDTPA), passed in April 2020, provides immunity to hospitals, nursing homes, and other health care professionals as to claims arising from alleged decisions, actions, and/or omissions related to the care of individuals with COVID-19 from Gov. Cuomo’s initial emergency declaration through its expiration. However, immunity under the statute is not unlimited. There is no immunity for damages or injuries that were caused due to willful or intentional criminal misconduct, gross negligence, reckless misconduct, and/or intentional infliction of harm.
In light of the recent news reports of DOH fines for failure to provide adequate PPE, nursing homes, hospitals, and other health care providers are concerned that resident advocacy groups and plaintiff personal injury attorneys will seek to use the fines as a basis to circumvent the EDTPA by claiming the DOH fine establishes that the facility was reckless or grossly negligent.
Stephen Hanse, president and CEO of the New York State Health Facilities Association and the New York State Center for Assisted Living, reportedly questioned whether fines are the best way to help improve safety. Nursing homes, he said, are still struggling to obtain enough staff and protective gear while sorting out sometimes conflicting state and federal regulations.
It remains to be seen if the courts will become involved in defining and clarifying exceptions to the EDTPA.
