Preview
iD: AYU PK WV INDEX NO. E2023-0104
OUN 0:40
NYSCEF BOC. NO. 30 RECEIVED NYSCEF: 05/30/2023
Exhibit R
THNDEXNNO .162028/0004
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/30/2023
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. BARBARA JAFFE PART 12
Justice
a= o- a anne X INDEX NO. 159046/2020
FELIPA GARCIA, MOTION DATE
Plaintiff,
MOTION SEQ. NO. 001
-vV-
NEW YORK CITY HEALTH AND HOSPITALS DECISION + ORDER ON
CORPORATION, MOTION
Defendant.
a= o- a
The following e-filed documents, listed by NYSCEF document number (Motion 001) 8-21, 24-35, 37-39
were read on this motion to dismiss
By notice of motion, defendant moves, pre-answer, for an order dismissing the complaint.
Plaintiff opposes.
In this action, plaintiff sues defendant for injuries she allegedly sustained in April 2020
while admitted as a patient at defendant’s medical facility, Bellevue Hospital Center, when she
fell while attempting to use the bathroom unassisted. Among plaintiff’s allegations are that
defendant failed to supervise her properly, provide her with necessary assistance, ensure that the
guardrails on her bed were in place, monitor her, and respond timely to her requests for help
using the bathroom. (NYSCEF 1).
I. CONTENTIONS
Defendant argues that, by virtue of New York’s Emergency or Disaster Treatment
Protection Act (EDTPA) (Pub Health Law §§ 3080-82) and the federal Public Readiness and
Emergency Preparedness Act (PREP) (42 US § 247d-6d, et seq.), it is immune from liability and
alleges that, along with other COVID-19 patients, plaintiff
was being treated at Bellevue for
159046/2020 Motion No. 001 Page 1 of 5
lof 5
THNDEXNNO .162028/0004
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/30/2023
COVID-19 in a special unit under specific care and guidelines for treatment and isolation of
patients. It observes that essentially, plaintiff's theory of liability against it is based on conduct
related to proper staffing, which is specifically exempted as bases for liability under the EDTPA.
(NYSCEF 9). Defendant submits affidavits from a physician and nurse, each attesting that
plaintiff's treatment at Bellevue was affected and impacted by the hospital’s response to
COVID-19 and its treatment of patients suffering from it. (NYSCEF 15, 16).
Plaintiff denies that the EDTPA immunizes all acts or omissions occurring at a medical
facility during the pandemic, and maintains that defendant fails to establish a basis for claiming
that its negligence resulted from staffing or other personnel issues, as its employees’ affidavits
generally reference conditions at Bellevue during the pandemic and do not relate to the specific
care rendered to plaintiff. (NYSCEF 25).
In reply, defendant reiterates that the EDTPA applies to plaintiffs claims and denies that
any exception applies. Therefore, it asserts, the claims are barred and frames the pertinent issue
as whether plaintiffs treatment was impacted by defendant’s response to the COVID-19
pandemic, observing that the EDTPA does not require a causal nexus between the response and
the harm suffered by a plaintiff. (NYSCEF 26).
After the motion’s return date, the parties submitted new decisions related to the EDTPA.
(NYSCEF 34-38).
Il. ANALYSIS
The EDTPA was enacted during and in response to the COVID-19 pandemic, when state
hospitals were inundated with COVID-19 patients and hospital resources and facilities were
strained and their ability to provide sufficient care for all of their patients was stymied. In
recognition thereof, the EDTPA was enacted to promote public health, safety, and welfare by
159046/2020 Motion No. 001 Page 2 of 5
2 of 5
THNDEXNNO .162028/0004
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/30/2023
“broadly protecting the health care facilities and health care professionals in this state from
liability that may result from treatment of individuals with COVID-19 under conditions resulting
from circumstances associated with” the pandemic. (Pub. Health Law § 3080-D).
Pursuant to the EDTPA, a medical facility is immune from liability for harm or damages
sustained as a result of an act or omission “in the course of arranging for or providing health care
services,” if:
(a) the health care facility or health care professional is arranging for or providing
health care services pursuant to a COVID-19 emergency rule or otherwise in
accordance with applicable law;
(b) the act or omission occurs in the course of arranging for or providing health care
services and the treatment of the individual is impacted by the health care
facility’s or health care professional’s decisions or activities in response to or as a
result of the COVID-19 outbreak and in support of the state’s directives; and
(c) the health care facility or health care professional is arranging for or providing
health care services in good faith.
(Pub Health Law § 3082).
Covered health care services are those “provided by a health care facility or a health care
professional, regardless of the location where those services are provided, that relate to: (a) the
diagnosis, prevention, or treatment of COVID-19; (b) the assessment or care of an individual
with a confirmed or suspected case of COVID-19; or (c) the care of any other individual who
presents at a health care facility or to a health care professional during the period of the COVID-
19 emergency declaration.” (Pub Health Law § 3081[5]).
There is no immunity, however, if the harm or damage was caused by acts or omissions
resulting from willful or intentional criminal misconduct, gross negligence, reckless misconduct,
or the intentional infliction of harm, except that “acts, omissions or decisions resulting from a
resource or staffing shortage shall not be considered to be willful or intentional criminal
159046/2020 Motion No. 001 Page 3 of 5
3 of 5
THNDEXNNO .162028/0004
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/30/2023
misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.” (/d.). The
EDTPA was repealed in April 2021.
There is no dispute that plaintiff's claims arise from the alleged failure to supervise,
monitor, and respond to her when she needed assistance to use the bathroom, all of which sound
in negligence and implicate resource or staffing shortages. It is also undisputed that plaintiff was
being treated at Bellevue for COVID-19 during the height of the pandemic and there is no
allegation that defendant failed to act in good faith in rendering her care. Defendant thus
establishes that plaintiffs claims are precluded by the EDTPA.
Contrary to plaintiff's argument, the EDTPA confers blanket immunity on negligence
occurring during the pandemic, due to the wisdom of the Legislature in recognizing that
treatment of COVID-19 patients was a priority and that a medical facility be given leeway in
deciding how to allocate treatment and resources in the immediate, emergent, and highly-fraught
environment. Moreover, nothing in the statute requires that the negligent act be directly related to
the treatment of a patient for COVID-19. Rather the acts must constitute a response to the
facility’s treatment of COVID-19 patients in general.
Given the conditions at Bellevue as alleged by defendant in terms of the number of
COVID-19 patients that it was treating, the amount of care they required, the gravity of their
conditions, and the staffing issues presented by both the illness and the required treatment, it is
reasonably inferred that Bellevue was unable to help plaintiff promptly due to the need to help
other COVID-19 patients with more immediate and critical needs due to a shortage of available
staff.
Other courts have reached the same result in dismissing claims against medical facilities
based on the EDTPA. (See Damon v Clove Lakes Healthcare and Rehab. Ctr., Inc., Sup Ct,
159046/2020 Motion No. 001 Page 4 of 5
4 of 5
THNDEXNNO .162028/0004
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/30/2023
Richmond County, June 17, 2022, Marrazzo, Jr., J., index No. 150031/22; Graves v Suffolk
County, Sup Ct, Suffolk County, Apr. 13, 2022, Condon, J. Index No. 603705/21; Saltanovich v
Sea View Hosp. Rehab. Ctr., Sup Ct, Richmond County, May 18, 2022, Aliotta, J., index No.
151212/21).
In one of the cases cited by plaintiff, in contrast to the instant case, the defendant offered
no evidence as to how the decedent’s care was impacted by the facility’s response to COVID-19,
nor did it establish that it had acted in good faith (NYSCEF 34; Robertson v Humboldt House
Rehab. & Nursing Ctr., Sup Ct, Erie County, Mar. 14, 2022, Ogden, J., index No. 805232/21). In
the other case, it was determined that the repeal of the EDPTA was retroactive (NYSCEF 37;
Whitehead v Pine Haven Operating LLC, Sup Ct, Columbia County, June 8, 2022, Zwack, J.,
index No. E012022017995), an issue not presented here and in any event, the decision has no
precedential value.
In light of this result, the parties’ arguments related to the federal PREP act need not be
considered.
Ill. CONCLUSION
Accordingly, it is hereby
ORDERED, that defendant’s motion to dismiss is granted, and the complaint is
dismissed, and the clerk is directed to enter judgment accordingly.
202207060919298/AFFESS: Gorares81 SpCse3D9030625
7/6/2022
DATE BARBARA JAFFE,dS.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
[ x | GRANTED C] DENIED GRANTED IN PART O OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: |__| INCLUDES TRANSFERIREASSIGN FIDUCIARY APPOINTMENT O REFERENCE
159046/2020 Motion No. 001 Page 5 of 5
5 of 5
Preview
iD: AYU PK WV INDEX NO. E2023-0104 OUN 0:40 NYSCEF BOC. NO. 30 RECEIVED NYSCEF: 05/30/2023 Exhibit R THNDEXNNO .162028/0004 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/30/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. BARBARA JAFFE PART 12 Justice a= o- a anne X INDEX NO. 159046/2020 FELIPA GARCIA, MOTION DATE Plaintiff, MOTION SEQ. NO. 001 -vV- NEW YORK CITY HEALTH AND HOSPITALS DECISION + ORDER ON CORPORATION, MOTION Defendant. a= o- a The following e-filed documents, listed by NYSCEF document number (Motion 001) 8-21, 24-35, 37-39 were read on this motion to dismiss By notice of motion, defendant moves, pre-answer, for an order dismissing the complaint. Plaintiff opposes. In this action, plaintiff sues defendant for injuries she allegedly sustained in April 2020 while admitted as a patient at defendant’s medical facility, Bellevue Hospital Center, when she fell while attempting to use the bathroom unassisted. Among plaintiff’s allegations are that defendant failed to supervise her properly, provide her with necessary assistance, ensure that the guardrails on her bed were in place, monitor her, and respond timely to her requests for help using the bathroom. (NYSCEF 1). I. CONTENTIONS Defendant argues that, by virtue of New York’s Emergency or Disaster Treatment Protection Act (EDTPA) (Pub Health Law §§ 3080-82) and the federal Public Readiness and Emergency Preparedness Act (PREP) (42 US § 247d-6d, et seq.), it is immune from liability and alleges that, along with other COVID-19 patients, plaintiff was being treated at Bellevue for 159046/2020 Motion No. 001 Page 1 of 5 lof 5 THNDEXNNO .162028/0004 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/30/2023 COVID-19 in a special unit under specific care and guidelines for treatment and isolation of patients. It observes that essentially, plaintiff's theory of liability against it is based on conduct related to proper staffing, which is specifically exempted as bases for liability under the EDTPA. (NYSCEF 9). Defendant submits affidavits from a physician and nurse, each attesting that plaintiff's treatment at Bellevue was affected and impacted by the hospital’s response to COVID-19 and its treatment of patients suffering from it. (NYSCEF 15, 16). Plaintiff denies that the EDTPA immunizes all acts or omissions occurring at a medical facility during the pandemic, and maintains that defendant fails to establish a basis for claiming that its negligence resulted from staffing or other personnel issues, as its employees’ affidavits generally reference conditions at Bellevue during the pandemic and do not relate to the specific care rendered to plaintiff. (NYSCEF 25). In reply, defendant reiterates that the EDTPA applies to plaintiffs claims and denies that any exception applies. Therefore, it asserts, the claims are barred and frames the pertinent issue as whether plaintiffs treatment was impacted by defendant’s response to the COVID-19 pandemic, observing that the EDTPA does not require a causal nexus between the response and the harm suffered by a plaintiff. (NYSCEF 26). After the motion’s return date, the parties submitted new decisions related to the EDTPA. (NYSCEF 34-38). Il. ANALYSIS The EDTPA was enacted during and in response to the COVID-19 pandemic, when state hospitals were inundated with COVID-19 patients and hospital resources and facilities were strained and their ability to provide sufficient care for all of their patients was stymied. In recognition thereof, the EDTPA was enacted to promote public health, safety, and welfare by 159046/2020 Motion No. 001 Page 2 of 5 2 of 5 THNDEXNNO .162028/0004 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/30/2023 “broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with” the pandemic. (Pub. Health Law § 3080-D). Pursuant to the EDTPA, a medical facility is immune from liability for harm or damages sustained as a result of an act or omission “in the course of arranging for or providing health care services,” if: (a) the health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; (b) the act or omission occurs in the course of arranging for or providing health care services and the treatment of the individual is impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives; and (c) the health care facility or health care professional is arranging for or providing health care services in good faith. (Pub Health Law § 3082). Covered health care services are those “provided by a health care facility or a health care professional, regardless of the location where those services are provided, that relate to: (a) the diagnosis, prevention, or treatment of COVID-19; (b) the assessment or care of an individual with a confirmed or suspected case of COVID-19; or (c) the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID- 19 emergency declaration.” (Pub Health Law § 3081[5]). There is no immunity, however, if the harm or damage was caused by acts or omissions resulting from willful or intentional criminal misconduct, gross negligence, reckless misconduct, or the intentional infliction of harm, except that “acts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal 159046/2020 Motion No. 001 Page 3 of 5 3 of 5 THNDEXNNO .162028/0004 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/30/2023 misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.” (/d.). The EDTPA was repealed in April 2021. There is no dispute that plaintiff's claims arise from the alleged failure to supervise, monitor, and respond to her when she needed assistance to use the bathroom, all of which sound in negligence and implicate resource or staffing shortages. It is also undisputed that plaintiff was being treated at Bellevue for COVID-19 during the height of the pandemic and there is no allegation that defendant failed to act in good faith in rendering her care. Defendant thus establishes that plaintiffs claims are precluded by the EDTPA. Contrary to plaintiff's argument, the EDTPA confers blanket immunity on negligence occurring during the pandemic, due to the wisdom of the Legislature in recognizing that treatment of COVID-19 patients was a priority and that a medical facility be given leeway in deciding how to allocate treatment and resources in the immediate, emergent, and highly-fraught environment. Moreover, nothing in the statute requires that the negligent act be directly related to the treatment of a patient for COVID-19. Rather the acts must constitute a response to the facility’s treatment of COVID-19 patients in general. Given the conditions at Bellevue as alleged by defendant in terms of the number of COVID-19 patients that it was treating, the amount of care they required, the gravity of their conditions, and the staffing issues presented by both the illness and the required treatment, it is reasonably inferred that Bellevue was unable to help plaintiff promptly due to the need to help other COVID-19 patients with more immediate and critical needs due to a shortage of available staff. Other courts have reached the same result in dismissing claims against medical facilities based on the EDTPA. (See Damon v Clove Lakes Healthcare and Rehab. Ctr., Inc., Sup Ct, 159046/2020 Motion No. 001 Page 4 of 5 4 of 5 THNDEXNNO .162028/0004 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/30/2023 Richmond County, June 17, 2022, Marrazzo, Jr., J., index No. 150031/22; Graves v Suffolk County, Sup Ct, Suffolk County, Apr. 13, 2022, Condon, J. Index No. 603705/21; Saltanovich v Sea View Hosp. Rehab. Ctr., Sup Ct, Richmond County, May 18, 2022, Aliotta, J., index No. 151212/21). In one of the cases cited by plaintiff, in contrast to the instant case, the defendant offered no evidence as to how the decedent’s care was impacted by the facility’s response to COVID-19, nor did it establish that it had acted in good faith (NYSCEF 34; Robertson v Humboldt House Rehab. & Nursing Ctr., Sup Ct, Erie County, Mar. 14, 2022, Ogden, J., index No. 805232/21). In the other case, it was determined that the repeal of the EDPTA was retroactive (NYSCEF 37; Whitehead v Pine Haven Operating LLC, Sup Ct, Columbia County, June 8, 2022, Zwack, J., index No. E012022017995), an issue not presented here and in any event, the decision has no precedential value. In light of this result, the parties’ arguments related to the federal PREP act need not be considered. Ill. CONCLUSION Accordingly, it is hereby ORDERED, that defendant’s motion to dismiss is granted, and the complaint is dismissed, and the clerk is directed to enter judgment accordingly. 202207060919298/AFFESS: Gorares81 SpCse3D9030625 7/6/2022 DATE BARBARA JAFFE,dS.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION [ x | GRANTED C] DENIED GRANTED IN PART O OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: |__| INCLUDES TRANSFERIREASSIGN FIDUCIARY APPOINTMENT O REFERENCE 159046/2020 Motion No. 001 Page 5 of 5 5 of 5