Look What We Found: Liability Shield Added Into New York State Budget for Hospitals and Nursing Homes for COVID-19

By Thomas M. Bona.

Although every industry wants immunity from liability, the hospital and nursing home industry got just that in the latest New York State budget bill. After months of lobbying and with the investment of hundreds of thousands of dollars in fees to lobby state legislators, hospitals and nursing homes received immunity from liability due to the coronavirus pandemic in a bill that was added into the latest New York State budget bill this past spring. The new law provides for immunity from civil and criminal liability for any harm or damage alleged to have been caused as a result of an act or omission in the course of arranging for providing healthcare services if the healthcare facility or healthcare professional was providing services pursuant to a COVID-19 emergency rule.

The law provides for immunity for any act or omission occurring in the course of arranging for providing healthcare services and treatment impacted by professionals’ decisions or activities in response to orders as a result of the COVID-19 outbreak. The new law does not apply to willful, intentional, criminal misconduct, gross negligence, reckless misconduct or intentional infliction of harm. However, acts or omissions or decisions resulting from a resource or staffing shortage are free from liability. The law also covers volunteer organizations. New York State Legislators described themselves as blindsided since the provision was inserted little more than hours before the bills were printed and voted on. Clearly, the decision was made as a policy matter to provide hospitals and nursing homes with immunity due to the unprecedented COVID-19 crisis.

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