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FILED: BRONX
RICHMOND
COUNTY
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NYSCEF DOC. NO. 15
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05/18/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND: PART C2
X
RAISA SALTANOVICH as Administrator of HON. THOMAS P. ALIOTTA
the Estate of MIKHAIL SALTANOVICH,
DECISION AND ORDER
Plaintiff
Index No.: 151312/2021
-against- Motion No.: 001
SEA VIEW HOSPITAL REHABILITATION
CENTER and NEW YORK CITY HEALTH
AND HOSPITALS CORPORATION,
Defendant.
X
Recitation, as required by CPLR 2219(a) of the following papers numbered "1" through
"4" were fully submitted on the 2" day of February 2022:
Papers
Numbered
Defendants' Notice of Motion,
Affirmation and Exhibits (NYSCEF 3-21) 1,2
Plaintiff's Affirmation in Opposition
with Exhibits (NYSCEF 29-32) 3
Defendants' Reply Affirmation
with Exhibits (NYSCEF 33-37) 4
Upon the foregoing papers, defendants' motion for an order pursuant to CPLR
§ 3211(a) (7) and New York Public Health Law §§ 3080 -3082, dismissing the complaint in its
entirety, with prejudice, as defendant is immune from the liability claimed in this action is
decided as follows:
This is an action to recover damages arising from the decedent's care and treatment at
defendants' facility. The complaint alleges causes of action premised upon negligence, breach of
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contract and wrongful death. Defendants have moved to dismiss this action pursuant to
CPLR §§ 3211(a)(7) and Public Health Law §§ 3080-3082 as they are immune from liability.
I) Defendants' Motion
a) Background Facts
On January 17, 2020, the United States Centers for Disease Control ("CDC") issued a
health alert with an update and interim guidance on a virus that later became known as "COV1D-
19". In response, the New York State Department of Health ("DOH") issued an Interim
Guidance for Health Care Providers and Facilities in New York State. On February 6, 2020, the
DOH started to provide healthcare facilities with information regarding the then-known clinical
presentations and symptoms by persons suspected to have COVID-19. The DOH also
disseminated the CDC guidelines for infection control and personal protective equipment in the
face of the nationwide shortage of resources.
Due to the rapid and sharp increase of COVID-I9 infections in New York State during
March, April and May of 2020, facilities such as defendant were required to increase capacity,
modify procedures, hire, and train new competent staff and monitor the rapidly changing
regulatory and medical updates. As of March 2, 2020, New York State had the capacity to
perform approximately 1000 tests per day, which increased on March 11, 2020 when additional
testing facilities were added through public-private partnerships. Also on March 11, 2020, the
DOH issued guidelines that, inter alia, directed employees, residents, and visitors to be screened
for COVID-19. The DOH also directed that staff and residents who were symptomatic were to
be quarantined. The next day, New York City declared a State of Emergency and then on March
13, 2020, the DOH issued guidelines that advised nursing homes and adult care facilities to
suspend all visitation and implement screening procedures for personnel at the beginning of each
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shift. Additionally, all staff were mandated to wear facemasks within six feet of residents and
the facilities were required to monitor for signs and symptoms of COVID-19, as well as isolate
residents suspected of having COVID-I9.
In response to the guidelines, defendant, Sea View, implemented the following protocols:
all staff and residents were issued personal protective equipment (PPE); educated staff and
residents with respect to hand hygiene, contact precautions and isolation protocols; monitored
compliance; and ended all communal meal service and restricted resident and staff movement
within the facility to minimize contact and contain the spread of COVID-19. On March 21 2020,
the DOH issued a health advisory that facilities were to presume that any febrile acute
respiratory illness was COVID-19 since testing capacity remained limited and hospitalized
healthcare workers were given priority.
Defendant also implemented its emergency operations center in response and created a
Pandemic COVID-19 Planning Committee to monitor the evolving COVID-19 emergency and to
develop guidelines, policies, and procedures related to preparedness and clinical issues.
The decedent was a long-term resident of Sea View, admitted in 2015 due to Alzheimer's
disease. His state of health remained unchanged until March 25, 2020 when it was documented
that he had a fever, decreased intake at breakfast, slight occasional productive cough with
whitish secretions, was warm to touch, and was sleepy but arousable to verbal stimuli, with a
temperature 100.9° and an 02 saturation of 90%. A care plan was developed in accordance with
the DOH guidance to treat acute febrile illness as COVID-19, since testing was restricted to
essential healthcare personnel, and recommended supportive care and antibiotics. The plan
provided for blood work, a chest x-ray, Tylenol every four hours as needed for temperature
greater than 100.5, IV fluids, and frequent monitoring of vital signs.
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The doctor notated that the decedent had a "MOLST" order (a Medical Order for Life
Sustaining Treatment), to wit: Do Not Resuscitate, Do Not Intubate, Do Not Hospitalize, and
administer palliative care. A chest x-ray, later that day, displayed no acute disease, but on March
27, 2020, decedent's temperature increased to 102.7 degrees. It was documented that decedent
had a productive cough and 02 saturation of 88% on room air. The plan was to continue IV for
hydration support, continue Tylenol as needed, supplemental oxygen as needed, start IV
antibiotics, and start a nebulizer. On March 29, 2020, decedent's temperature dropped to 102.1 0
and his 02 saturation level rose to 94% on room air. The doctor recommended to continue with
the prior course of treatment and to continue with COVID-19 protocols with respect to PPE and
sanitizing the facility. His condition continued to improve but starting on April 3, 2020, his oral
intake was decreasing. Therefore, the care plan was to continue IV hydration without artificial
feeding. The decedent was assessed with a grave prognosis and remained in palliative care. On
April 9, 2020, he was in respiratory distress, with a fever of 100.6°, respiratory congestion and
labored breathing. Plaintiff was advised that the decedent was actively dying. It was agreed that
Morphine was to be administered so that he could peacefully pass away.
b) Procedural History and the Pleadings
Plaintiff, the decedent's daughter, served a Notice of Claim on September 22, 2020
alleging that from March 25, 2020 through April 12, 2020, defendants, and "its agents were
negligent and failed to provide adequate and appropriate medical services that ultimately lead to
the death of Mikhail Saltanovich" (NYSCEF 6, 13). It was further alleged that defendants failed
to provide adequate supervision and training of their staff, failed to transfer the decedent to a
hospital despite exhibiting signs of illness, all of which deprived the decedent of vital medical
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care and treatment (hi.). A hearing pursuant to General Municipal Law §50-h was held March
10, 2021 via the Zoom video conferencing platform (NYSCEF 7, p.8:18-23).
Plaintiff testified that prior to March 2020, she would visit her father every Sunday
(NYSCEF 7, 73:10-13). The last time she visited her father prior to his death was Sunday,
March 8, 2020 due to the quarantine in effect (74:23-25, pp.75-76). However, she was able to
see and communicate with him one final time via FaceTime on March 16, 2020 (86:4-18;
110:21-25). He was not wearing a face covering during this FaceTime visit (87:18-21). Plaintiff
believed that the social worker was holding the iPad for her father, but this person did not appear
on screen (88:3-19). During this virtual visit, the decedent did not exhibit breathing issues
(92:23-25, 93:2-3). It was not until March 25, 2020 that plaintiff received a phone call that her
father was sick (93:21-25, 94:2-3).
Plaintiff asked whether her father was tested for COVID and was advised that defendants
"do not test for COVID because they don't have kits to test for COVID and they were instructed
to treat symptoms, and that's what they're doing" (94:8-20; 101:16-23). She was also advised
that a chest x-ray confirmed that in addition to possibly being infected with COVID, the
decedent had pneumonia (103:17-23) and despite IV fluids and antibiotics, he was not
responding to treatment and his condition was worsening (104:4-13; p.105). Plaintiff described
her father's condition between April 3 and April 9, 2020, as being "a big yo-yo up and down".
When plaintiff would inquire about his appetite, she would constantly get different answers
(108:11-24). On April 9' 2020, she was advised that treatment would be stopped, and morphine
would be administered to make him more comfortable (p.105). Plaintiff was advised that
decedent was dying from the COVID virus and, unfortunately, there was nothing defendants
could do (106:3-9). She asked the defendants to make him comfortable (134:5-15). Plaintiff
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testified that a signed "do-not resuscitate order" was in effect (pp.79-83). This order was never
rescinded (84:6-8). She summarized the timeline as follows:
Q: Can you tell me what's written in your notes?
A: It's March 12th closed doors, March 16th FaceTime, March 25th got sick, Eunu
called me. April 3rd Eunu called me is --that my father is not doing well and he's dying
from the virus and then I have no date, but it says that he's doing better and they stopped
antibiotic and IV fluids. April 9th that he's dying again and morphine was ordered. April
12th doctor called that my father passed away. (134:5-16).
During this phone call on April 12, 2020, the doctor did not inform plaintiff of the cause
of death (117:15-25). It was not until the funeral home advised her that since the death
certificate noted "suspected COVID" as the cause of death, her father's body needed to be placed
in a special disaster bag for burial (118:7-16).1
Plaintiff commenced this action on July 12, 2021 electronically filing the summons and
complaint. However, the complaint expanded the dates of the alleged negligent care as February
I, 2020 to April 12, 2020. The complaint alleges, inter cilia, that defendants through their agents
servants and/or employees,
...were negligent, reckless, willful and wanton in their ownership, management,
maintenance, care and control of the facility: in failing to establish infection prevention
and control policies and procedures; in failing to follow infection prevention and control
policies and procedures; in failing to train their staff on the infection prevention and
control policies and procedures; in failing to enforce the infection prevention and control
policies and procedures; in failing to heed the warnings of the seriousness of Covid-19; in
failing to appreciate the risks Covid-19 posed to the residents of nursing home facilities;
in failing to enforce standard infection prevention and control policies and procedures; in
failing to timely segregate ill residents from healthy residents; in failing to timely and
accurately screen employees for signs and symptoms of Covid-19; in failing to timely
and accurately screen visitors for signs and symptoms of Covid-19; in failing to timely
establish Covid-19 policies and procedures; in failing to timely enforce recommended
Covid-19 policies and procedures; in failing to have sufficient personal protective
equipment and supplies for the safety and protection of residents and staff; in failing to
timely transfer MIKHAIL SALTANOVICH to the hospital when he exhibited signs
The death certificate lists the immediate cause of death as "Suspected Covid-19" with other significant conditions
contributing thereto as "End Stage Alzheimer's Disease, Coronary Artery Disease, Hypertension" (See,
NYSCEF IS, p.109)
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and symptoms of illness, depriving him of vital medical care; in failing to establish
policies and procedures to insure they have the ability to care for the needs of all the
residents who are admitted to their facility; in failing to provide the quantity of
qualified staff necessary to deliver all care needed to meet the needs of all their
residents in general, and MIKHAIL SALTANOVICH in particular; in failing to
hire, train and supervise sufficient numbers of care giving staff to insure that
residents at SEA VIEW HOSPITAL REHABILITATION CENTER, including
MIKHAIL SALTANOVICH, were protected from health and safety hazards and
were provided with adequate custodial care; and in failing to take any action to
prevent resident neglect (NYSCEF 10, pp.6-7).
c) Decedent's Medical Records
On 3/25/2020, decedent was alert and verbally responsive, but confused and disoriented
(Id. at p.1 04-105). The medical records document diagnoses of viral pneumonia, fever of 100.5°
and contact with and suspected exposure to other viral communicable diseases (Id.). This fever
was treated with a rectal suppository every 4 hours as needed. The fever varied between 100.5 0
and 100.9° (j4. at p.104). The records indicate that starting on 3/25/2020, there was an ongoing
fluctuation in temperature as follows:
3/25/2020 101.2°, 100.9°, and 98.5°
3/26/2020 103°, 101.9°, 101.8°, 98.8° and 98.6°
3/27/2020 102° and 102.2°
3/28/2020 100° and 99.9°
On 3/27/2020, antibiotic therapy was ordered for decedent due to a Respiratory
Infection/Acute Bronchitis which was presumed to be COVID. A care plan was developed with
two goals that, "The resident will be free from s/sx of infection by review date" and "The
resident will be free of symptoms of respiratory distress through the review date" (j4. at p. 106).
Further, the plan stated that the facility was to "ensure wearing of mask if tolerated when within
6 feet from caregivers or other residents." On 3/30/2020, "Raya Saltanovich" was informed that
the antibiotic therapy would be extended through 4/3/2020. He was alert and responsive without
signs of distress or discomfort on 3/31/2020, 4/1/2020 and 4/2/2020 with a temperature between
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98.9° and 100°. On 4/3/2020, the decedent's temperature returned to 98.2'; on 4/6/2020, his
temperature was between 98.7° and 99.1° with an 02 saturation level of 97%.; and on 4/6/2020,
he was being treated with antibiotics for acute bronchitis which is also noted the day before on
4/5/2020 with a temperature of 98.76°.
As of 4/7/2020, the decedent's appetite was good, he was alert and responsive, but he
required oxygen for shortness of breath. His temperature varied from 97.6° to 99°. However, he
became lethargic on 4/9/2020, with a temperature of 100.6° and an 02 saturation level of 84%.
Later that day, his temperature registered 99.5° with an 02 saturation level of 90% and later,
99.7° and 92%. It was noted that the entire facility was on "contact/droplet" precautions for
COVID (NYSCEF 15, at p.36). It was also noted that "communicated Plan with Family/POA,
"Raya Saltanovich"... Aware resident is actively dying and having SOB. Agrees with
morphine.. .she wants him to die in peace" (Icl.). On 4/10/2020, the decedent was reported to be
lethargic, tolerated suctioning well and was sleeping comfortably. His temperature was 97.5°
with an 02 saturation level of 90%. On 4/11/2020, decedent was noted to have increased
secretions requiring suctioning; Tylenol and cooling measures were provided for the fever which
reduced the fever from 100.3° to 98.9° with an 02 saturation level of 97%. He was to receive
oxygen as needed for shortness of breath.
On the date of his demise, it was reported that the decedent had increased oral mucus
secretion with a temperature of 100.3° at 6:04 A.M. He received cooling measures which
reduced the temperature to 98.9'; had an 02 saturation level of 97%; and was receiving oxygen
via a face mask. Then, at 07:05 A.M., his temperature was reported as 99.8° with an 02
saturation level of 94% and he was being monitored for any changes. The congestion persisted
and oropharyngeal suctioning was needed for mucus. His temperature then rose again to 100.8';
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he was lethargic and congested; and his 02 saturation level was 87% at 11:00 A.M. At 2:48
P.M., the decedent was moved from the bed to a wheelchair. At 6:00 P.M., he ceased breathing
and no vital signs were detected, and he passed away at 6:10 P.M.
d) Legal Argument
Defendants argue that this action must be dismissed since it is barred by New York State
Public Health Law §§ 3080-3082 that was in effect during the dates of treatment as alleged in the
Notice of Claim which granted immunity to defendants arising out of the decedent's care and
treatment related to COVID-19. Any claims of negligent treatment, breach of contract or
wrongful death relating to care and treatment rendered prior to the effective date of Public Health
Law §§ 3080-3082 are conclusory without factual or legal grounds. Decedent's medical records
and plaintiff's testimony conclusively establish that up until March 25, 2020, decedent was in his
usual state of health. Defendants were following all protocols enacted by the New York State
Department of Health and any staffing or resource shortages in combating the pandemic were not
due to any willful or intentional criminal misconduct, gross negligence, reckless misconduct or
intentional acts of defendants. Therefore, none of the exceptions to Public Health Law §§ 3080-
3082 are applicable to plaintiff's causes of action as defendants were arranging for or providing
health care services in good faith under the extraordinary uncertainties in the early days of the
COVID-19 pandemic.
H) Plaintiff's Opposition
Plaintiff argues that at the time Public Health Law §§ 3080-3082 was repealed, the
Legislature retroactively withdrew the immunity previously granted to nursing homes. In
support of this position, plaintiff relies upon the investigative report of the New York State
Attorney General as revised on January 30, 2021. The report determined that a large number of
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nursing home residents died from COVID-19. Further, it was the lack of compliance with
infection control protocols that put residents at an increased risk of harm during the COVID-19
pandemic. This lack of compliance consisted of insufficient PPE for nursing home staff which,
in turn, increased this risk of harm. More importantly, the funds for PPE were diverted
elsewhere to increase profits. It was the opinion of the Attorney General that some nursing
homes exploited the immunity granted by Public Health Law §§ 3080-3082 and made
"financially-motivated" decisions in lieu of rendering care and treatment to the residents in good
faith.
On April 6, 2021, approximately 66 days after the final report was released, the New
York State Legislature repealed Article 30-D of the Public Health Law, §§ 3080-3082 (See,
Senate Bill S5177). The purpose or general idea of Senate Bill S5177 set forth that, "This bill
repeals Article 30-D of the Public Health Law...with the intent of holding health care facilities,
administrators, and executives accountable for harm and damages incurred" Therefore,
plaintiff argues that the remedial aspect of the repeal is readily apparent from the bill's
memorandum and the Attorney General's January 30, 2021 report specifically referenced
therein.
Alternatively, plaintiff argues that even if the Court holds that the repeal was not intended
to be retroactive, the ordinary law of negligence as applied to a nursing home's response to
COVID-19 is rapidly changing. Once again, plaintiff relies upon the Attorney General's report
wherein she opines that it is unclear to what extent facilities can be held accountable if found to
have failed to appropriately protect the residents in their care. Here, defendants were not
providing services to the decedent pursuant to the COVID-19 emergency laws that were put in
place. Rather, decedent was a long-term resident in the facility pursuant to a contractual
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agreement. Therefore, defendants had a duty to protect decedent from infectious diseases. The
protections should have been in place prior to the COVID-19 outbreak. If such protections were
in place, the outbreak of COVID-19 in defendants' facility would have been minimal. Plaintiff
relies upon a citation issued to defendants in 2018 for deficiencies regarding infection prevention
and control.
Finally, plaintiff argues that her allegations are broad enough to establish a cause of
action based upon gross negligence and discovery is necessary to explore defendants' acts.
Ultimately, the question of whether defendants' conduct rose to such a level is a question of fact
to be determined by the jury.
III) Defendants' Reply
In reply, defendants argue that plaintiff has failed to establish that the Legislature
retroactively repealed the immunity previously granted under Public Health Law §§ 3080-3082.
Plaintiff fails to acknowledge that there is a strong presumption against retroactivity of statutes.
In support, defendants point to the New York State Assembly Transcript (NYSCEF 35, 45-46,
48, 53-54, 58-60, 64-68, 70, 73, 82, 84, 86, 90-92),2 and the Senate Transcript (NYSCEF 36,
p.1835-1838).3 Defendants also rely on General Construction Law § 93 and § 110.
In an attempt to bypass this legal principle, plaintiff has alternatively argued that
defendants breached a duty of care by failing to predict and protect against a newly-evolved
pathogen that killed millions of people world-wide. At the time of the statute's enactment and
decedent's demise, health care workers and patients were "dying in droves" and the immunity
was broad. At the time of its repeal, the first wave had abated.
2The Members stated on the record that the repeal was not intended to be retroactive.
3Senator Mayer states that, "And I want to clarify that my understanding is that this bill is prospective, it will apply
going forward."
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Based upon the plain wording of the statute and defendants actions in rendering COVID-
19 care and treatment to decedent despite the lack of a definitive diagnosis, no further discovery
can defeat immunity. Moreover, plaintiff's failure to specifically allege gross negligence by
"shoehorning" ordinary allegations of negligence is insufficient to overcome this pleading
deficiency. The facts as alleged do not constitute gross negligence.
It is further argued that plaintiff imputes words into the statute that do not exist. The
plain wording of statute, as enacted, provides that immunity is granted where "the treatment of
the individual is impacted by the health care facility's.. .decisions or activities in response to or
as a result of the COVID-19 outbreak and in support of the state's directives" (NYSCEF 33, ¶7).
The question is whether the decedent's care and treatment were impacted by defendants'
response to COVID-19, not whether defendants' decisions substantially or negatively impacted
the care and treatment.
Based upon all of the above, defendants argue that the motion must be granted.
IV) Discussion
a) Legislative History — Article 30-D
On March 7, 2020, then Governor Cuomo signed Executive Order 202 ("E0 202"),
declaring a Disaster Emergency in the State of New York (9 NYCRR 8.202).4 The preamble to
EO 202 stated that it was issued in response to the World Health Organization designating the
novel coronavirus, COVID-19 outbreak as a Public Health Emergency of International Concern.
Additionally, on January 31, 2020, the United States Health and Human Services Secretary
declared a public health emergency for the entire United States to aid the healthcare
community's ability to respond to the outbreak (Id.). The preamble also emphasized that the
The Executive Orders have been removed from www,govemor.ny.gov. Therefore, this Court sites to Title 9,
Subtitle A, Chapter!, Part 8 of the New York Administrative Code.
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State of New York needed to address the threat posed by COVID-19 to the health and welfare of
its residents and visitors (N.). EO 202, in an attempt to address emerging staffing shortages,
permitted "unlicensed individuals, upon completion of training deemed adequate by the
Commissioner of Health, to collect throat or nasopharyngeal swab specimens from individuals
suspected of being infected by COVID-19, for purposes of testing; and to the extent necessary to
permit non-nursing staff, upon completion of training deemed adequate by the Commissioner of
Health, to perform tasks, under the supervision of a nurse, otherwise limited to the scope of
practice of a licensed or registered nurse" (N. — Sections 6521 and 6902 of the Education Law).
The outbreak continued to spread rapidly and on March 20, 2020, Governor Cuomo
signed EO 202.10(9 NYCRR 8.202.10) to take effect on March 23, 2020. It is this EO that
fostered the creation of Article 30-D of the Public Health Law, §§ 3080-3082 (See NYSCEF 35,
p.55 [The page number refers to the page number of the transcript, not the digital page on
NYSCEF]). This subsequent EO expanded the breadth of EO 202.
Specifically, EO 202.10 granted immunity, except as to acts of gross negligence, to
medical professionals, as well as shielding healthcare workers and clinical students from civil
and criminal liability in effort to mitigate staffing shortages in the face of the rapidly escalating
pandemic. EO 202.10 suspended the restrictions otherwise required by law for such employment
and contractual services. This immunity and the related provisions were not initially included in
EO 202. EO 202.10 stated in relevant part as follows:
Sections 405.13 and 755.4 of Title 10 of the NYCRR to the extent necessary to permit
an advanced practice registered nurse with a doctorate or master's degree specializing in
the administration of anesthesia administering anesthesia in a general hospital or free-
standing ambulatory surgery center without the supervision of a qualified physician in
these health care settings;
Paragraph 1 of Section 6542 of the Education Law and Subdivisions (a) and (b) of
Section 94.2 of Title 10 of the NYCRR to the extent necessary to permit a physician
assistant to provide medical services appropriate to their education, training and
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INDEXNO.
NO.800934/2023E
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NYSCEF DOC. NO. 15
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05/18/2022
experience without oversight from a supervising physician without civil or criminal
penalty related to a lack of oversight by a supervising physician;
Paragraph 1 of Section 6549 of the Education Law and Subdivisions (a) and (b) of
Section 94.2 of Title 10 of the NYCRR to the extent necessary to permit a specialist
assistant to provide medical services appropriate to their education, training and
experience without oversight from a supervising physician without civil or criminal
penalty related to a lack of oversight by a supervising physician;
Subdivision (3) of Section 6902 of Education Law, and any associated regulations,
including, but not limited to, Section 64.5 of Title 10 of the NYCRR, to the extent
necessary to permit a nurse practitioner to provide medical services appropriate to their
education, training and experience, without a written practice agreement, or
collaborative relationship with a physician, without civil or criminal penalty related to a
lack of written practice agreement, or collaborative relationship, with a physician
Subdivision (15) of section 3001, and Sections 800.3, 800.15 and 800.16 of Title 10 of
the NYCRR with approval of the department, to the extent necessary to define "medical
control" to include emergency and non-emergency direction to all emergency medical
services personnel by a regional or state medical control center and to permit emergency
medical services personnel to operate under the advice and direction of a nurse
practitioner, physician assistant, or paramedic, provided that such medical professional is
providing care under the supervision of a physician and pursuant to a plan approved by
the Department of Health;
Subdivision (2) of section 6527, Section 6545, and Subdivision (1) of Section 6909 of
the Education Law, to the extent necessary to provide that all physicians, physician
assistants, specialist assistants nurse practitioners, licensed registered professional
nurses mid licensed practical nurses sh
Preview
FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND: PART C2 X RAISA SALTANOVICH as Administrator of HON. THOMAS P. ALIOTTA the Estate of MIKHAIL SALTANOVICH, DECISION AND ORDER Plaintiff Index No.: 151312/2021 -against- Motion No.: 001 SEA VIEW HOSPITAL REHABILITATION CENTER and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant. X Recitation, as required by CPLR 2219(a) of the following papers numbered "1" through "4" were fully submitted on the 2" day of February 2022: Papers Numbered Defendants' Notice of Motion, Affirmation and Exhibits (NYSCEF 3-21) 1,2 Plaintiff's Affirmation in Opposition with Exhibits (NYSCEF 29-32) 3 Defendants' Reply Affirmation with Exhibits (NYSCEF 33-37) 4 Upon the foregoing papers, defendants' motion for an order pursuant to CPLR § 3211(a) (7) and New York Public Health Law §§ 3080 -3082, dismissing the complaint in its entirety, with prejudice, as defendant is immune from the liability claimed in this action is decided as follows: This is an action to recover damages arising from the decedent's care and treatment at defendants' facility. The complaint alleges causes of action premised upon negligence, breach of 151312/2021 Page 1 of 26 1 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 contract and wrongful death. Defendants have moved to dismiss this action pursuant to CPLR §§ 3211(a)(7) and Public Health Law §§ 3080-3082 as they are immune from liability. I) Defendants' Motion a) Background Facts On January 17, 2020, the United States Centers for Disease Control ("CDC") issued a health alert with an update and interim guidance on a virus that later became known as "COV1D- 19". In response, the New York State Department of Health ("DOH") issued an Interim Guidance for Health Care Providers and Facilities in New York State. On February 6, 2020, the DOH started to provide healthcare facilities with information regarding the then-known clinical presentations and symptoms by persons suspected to have COVID-19. The DOH also disseminated the CDC guidelines for infection control and personal protective equipment in the face of the nationwide shortage of resources. Due to the rapid and sharp increase of COVID-I9 infections in New York State during March, April and May of 2020, facilities such as defendant were required to increase capacity, modify procedures, hire, and train new competent staff and monitor the rapidly changing regulatory and medical updates. As of March 2, 2020, New York State had the capacity to perform approximately 1000 tests per day, which increased on March 11, 2020 when additional testing facilities were added through public-private partnerships. Also on March 11, 2020, the DOH issued guidelines that, inter alia, directed employees, residents, and visitors to be screened for COVID-19. The DOH also directed that staff and residents who were symptomatic were to be quarantined. The next day, New York City declared a State of Emergency and then on March 13, 2020, the DOH issued guidelines that advised nursing homes and adult care facilities to suspend all visitation and implement screening procedures for personnel at the beginning of each 151312/2021 Page 2 of 26 2 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 shift. Additionally, all staff were mandated to wear facemasks within six feet of residents and the facilities were required to monitor for signs and symptoms of COVID-19, as well as isolate residents suspected of having COVID-I9. In response to the guidelines, defendant, Sea View, implemented the following protocols: all staff and residents were issued personal protective equipment (PPE); educated staff and residents with respect to hand hygiene, contact precautions and isolation protocols; monitored compliance; and ended all communal meal service and restricted resident and staff movement within the facility to minimize contact and contain the spread of COVID-19. On March 21 2020, the DOH issued a health advisory that facilities were to presume that any febrile acute respiratory illness was COVID-19 since testing capacity remained limited and hospitalized healthcare workers were given priority. Defendant also implemented its emergency operations center in response and created a Pandemic COVID-19 Planning Committee to monitor the evolving COVID-19 emergency and to develop guidelines, policies, and procedures related to preparedness and clinical issues. The decedent was a long-term resident of Sea View, admitted in 2015 due to Alzheimer's disease. His state of health remained unchanged until March 25, 2020 when it was documented that he had a fever, decreased intake at breakfast, slight occasional productive cough with whitish secretions, was warm to touch, and was sleepy but arousable to verbal stimuli, with a temperature 100.9° and an 02 saturation of 90%. A care plan was developed in accordance with the DOH guidance to treat acute febrile illness as COVID-19, since testing was restricted to essential healthcare personnel, and recommended supportive care and antibiotics. The plan provided for blood work, a chest x-ray, Tylenol every four hours as needed for temperature greater than 100.5, IV fluids, and frequent monitoring of vital signs. 151312/2021 Page 3 of 26 3 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 The doctor notated that the decedent had a "MOLST" order (a Medical Order for Life Sustaining Treatment), to wit: Do Not Resuscitate, Do Not Intubate, Do Not Hospitalize, and administer palliative care. A chest x-ray, later that day, displayed no acute disease, but on March 27, 2020, decedent's temperature increased to 102.7 degrees. It was documented that decedent had a productive cough and 02 saturation of 88% on room air. The plan was to continue IV for hydration support, continue Tylenol as needed, supplemental oxygen as needed, start IV antibiotics, and start a nebulizer. On March 29, 2020, decedent's temperature dropped to 102.1 0 and his 02 saturation level rose to 94% on room air. The doctor recommended to continue with the prior course of treatment and to continue with COVID-19 protocols with respect to PPE and sanitizing the facility. His condition continued to improve but starting on April 3, 2020, his oral intake was decreasing. Therefore, the care plan was to continue IV hydration without artificial feeding. The decedent was assessed with a grave prognosis and remained in palliative care. On April 9, 2020, he was in respiratory distress, with a fever of 100.6°, respiratory congestion and labored breathing. Plaintiff was advised that the decedent was actively dying. It was agreed that Morphine was to be administered so that he could peacefully pass away. b) Procedural History and the Pleadings Plaintiff, the decedent's daughter, served a Notice of Claim on September 22, 2020 alleging that from March 25, 2020 through April 12, 2020, defendants, and "its agents were negligent and failed to provide adequate and appropriate medical services that ultimately lead to the death of Mikhail Saltanovich" (NYSCEF 6, 13). It was further alleged that defendants failed to provide adequate supervision and training of their staff, failed to transfer the decedent to a hospital despite exhibiting signs of illness, all of which deprived the decedent of vital medical 151312/2021 Page 4 of 26 4 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 care and treatment (hi.). A hearing pursuant to General Municipal Law §50-h was held March 10, 2021 via the Zoom video conferencing platform (NYSCEF 7, p.8:18-23). Plaintiff testified that prior to March 2020, she would visit her father every Sunday (NYSCEF 7, 73:10-13). The last time she visited her father prior to his death was Sunday, March 8, 2020 due to the quarantine in effect (74:23-25, pp.75-76). However, she was able to see and communicate with him one final time via FaceTime on March 16, 2020 (86:4-18; 110:21-25). He was not wearing a face covering during this FaceTime visit (87:18-21). Plaintiff believed that the social worker was holding the iPad for her father, but this person did not appear on screen (88:3-19). During this virtual visit, the decedent did not exhibit breathing issues (92:23-25, 93:2-3). It was not until March 25, 2020 that plaintiff received a phone call that her father was sick (93:21-25, 94:2-3). Plaintiff asked whether her father was tested for COVID and was advised that defendants "do not test for COVID because they don't have kits to test for COVID and they were instructed to treat symptoms, and that's what they're doing" (94:8-20; 101:16-23). She was also advised that a chest x-ray confirmed that in addition to possibly being infected with COVID, the decedent had pneumonia (103:17-23) and despite IV fluids and antibiotics, he was not responding to treatment and his condition was worsening (104:4-13; p.105). Plaintiff described her father's condition between April 3 and April 9, 2020, as being "a big yo-yo up and down". When plaintiff would inquire about his appetite, she would constantly get different answers (108:11-24). On April 9' 2020, she was advised that treatment would be stopped, and morphine would be administered to make him more comfortable (p.105). Plaintiff was advised that decedent was dying from the COVID virus and, unfortunately, there was nothing defendants could do (106:3-9). She asked the defendants to make him comfortable (134:5-15). Plaintiff 151312/2021 Page 5 of 26 5 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 testified that a signed "do-not resuscitate order" was in effect (pp.79-83). This order was never rescinded (84:6-8). She summarized the timeline as follows: Q: Can you tell me what's written in your notes? A: It's March 12th closed doors, March 16th FaceTime, March 25th got sick, Eunu called me. April 3rd Eunu called me is --that my father is not doing well and he's dying from the virus and then I have no date, but it says that he's doing better and they stopped antibiotic and IV fluids. April 9th that he's dying again and morphine was ordered. April 12th doctor called that my father passed away. (134:5-16). During this phone call on April 12, 2020, the doctor did not inform plaintiff of the cause of death (117:15-25). It was not until the funeral home advised her that since the death certificate noted "suspected COVID" as the cause of death, her father's body needed to be placed in a special disaster bag for burial (118:7-16).1 Plaintiff commenced this action on July 12, 2021 electronically filing the summons and complaint. However, the complaint expanded the dates of the alleged negligent care as February I, 2020 to April 12, 2020. The complaint alleges, inter cilia, that defendants through their agents servants and/or employees, ...were negligent, reckless, willful and wanton in their ownership, management, maintenance, care and control of the facility: in failing to establish infection prevention and control policies and procedures; in failing to follow infection prevention and control policies and procedures; in failing to train their staff on the infection prevention and control policies and procedures; in failing to enforce the infection prevention and control policies and procedures; in failing to heed the warnings of the seriousness of Covid-19; in failing to appreciate the risks Covid-19 posed to the residents of nursing home facilities; in failing to enforce standard infection prevention and control policies and procedures; in failing to timely segregate ill residents from healthy residents; in failing to timely and accurately screen employees for signs and symptoms of Covid-19; in failing to timely and accurately screen visitors for signs and symptoms of Covid-19; in failing to timely establish Covid-19 policies and procedures; in failing to timely enforce recommended Covid-19 policies and procedures; in failing to have sufficient personal protective equipment and supplies for the safety and protection of residents and staff; in failing to timely transfer MIKHAIL SALTANOVICH to the hospital when he exhibited signs The death certificate lists the immediate cause of death as "Suspected Covid-19" with other significant conditions contributing thereto as "End Stage Alzheimer's Disease, Coronary Artery Disease, Hypertension" (See, NYSCEF IS, p.109) 151312/2021 Page 6 of 26 6 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 and symptoms of illness, depriving him of vital medical care; in failing to establish policies and procedures to insure they have the ability to care for the needs of all the residents who are admitted to their facility; in failing to provide the quantity of qualified staff necessary to deliver all care needed to meet the needs of all their residents in general, and MIKHAIL SALTANOVICH in particular; in failing to hire, train and supervise sufficient numbers of care giving staff to insure that residents at SEA VIEW HOSPITAL REHABILITATION CENTER, including MIKHAIL SALTANOVICH, were protected from health and safety hazards and were provided with adequate custodial care; and in failing to take any action to prevent resident neglect (NYSCEF 10, pp.6-7). c) Decedent's Medical Records On 3/25/2020, decedent was alert and verbally responsive, but confused and disoriented (Id. at p.1 04-105). The medical records document diagnoses of viral pneumonia, fever of 100.5° and contact with and suspected exposure to other viral communicable diseases (Id.). This fever was treated with a rectal suppository every 4 hours as needed. The fever varied between 100.5 0 and 100.9° (j4. at p.104). The records indicate that starting on 3/25/2020, there was an ongoing fluctuation in temperature as follows: 3/25/2020 101.2°, 100.9°, and 98.5° 3/26/2020 103°, 101.9°, 101.8°, 98.8° and 98.6° 3/27/2020 102° and 102.2° 3/28/2020 100° and 99.9° On 3/27/2020, antibiotic therapy was ordered for decedent due to a Respiratory Infection/Acute Bronchitis which was presumed to be COVID. A care plan was developed with two goals that, "The resident will be free from s/sx of infection by review date" and "The resident will be free of symptoms of respiratory distress through the review date" (j4. at p. 106). Further, the plan stated that the facility was to "ensure wearing of mask if tolerated when within 6 feet from caregivers or other residents." On 3/30/2020, "Raya Saltanovich" was informed that the antibiotic therapy would be extended through 4/3/2020. He was alert and responsive without signs of distress or discomfort on 3/31/2020, 4/1/2020 and 4/2/2020 with a temperature between 151312/2021 Page 7 of 26 7 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 98.9° and 100°. On 4/3/2020, the decedent's temperature returned to 98.2'; on 4/6/2020, his temperature was between 98.7° and 99.1° with an 02 saturation level of 97%.; and on 4/6/2020, he was being treated with antibiotics for acute bronchitis which is also noted the day before on 4/5/2020 with a temperature of 98.76°. As of 4/7/2020, the decedent's appetite was good, he was alert and responsive, but he required oxygen for shortness of breath. His temperature varied from 97.6° to 99°. However, he became lethargic on 4/9/2020, with a temperature of 100.6° and an 02 saturation level of 84%. Later that day, his temperature registered 99.5° with an 02 saturation level of 90% and later, 99.7° and 92%. It was noted that the entire facility was on "contact/droplet" precautions for COVID (NYSCEF 15, at p.36). It was also noted that "communicated Plan with Family/POA, "Raya Saltanovich"... Aware resident is actively dying and having SOB. Agrees with morphine.. .she wants him to die in peace" (Icl.). On 4/10/2020, the decedent was reported to be lethargic, tolerated suctioning well and was sleeping comfortably. His temperature was 97.5° with an 02 saturation level of 90%. On 4/11/2020, decedent was noted to have increased secretions requiring suctioning; Tylenol and cooling measures were provided for the fever which reduced the fever from 100.3° to 98.9° with an 02 saturation level of 97%. He was to receive oxygen as needed for shortness of breath. On the date of his demise, it was reported that the decedent had increased oral mucus secretion with a temperature of 100.3° at 6:04 A.M. He received cooling measures which reduced the temperature to 98.9'; had an 02 saturation level of 97%; and was receiving oxygen via a face mask. Then, at 07:05 A.M., his temperature was reported as 99.8° with an 02 saturation level of 94% and he was being monitored for any changes. The congestion persisted and oropharyngeal suctioning was needed for mucus. His temperature then rose again to 100.8'; 151312/2021 Page 8 of 26 8 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 he was lethargic and congested; and his 02 saturation level was 87% at 11:00 A.M. At 2:48 P.M., the decedent was moved from the bed to a wheelchair. At 6:00 P.M., he ceased breathing and no vital signs were detected, and he passed away at 6:10 P.M. d) Legal Argument Defendants argue that this action must be dismissed since it is barred by New York State Public Health Law §§ 3080-3082 that was in effect during the dates of treatment as alleged in the Notice of Claim which granted immunity to defendants arising out of the decedent's care and treatment related to COVID-19. Any claims of negligent treatment, breach of contract or wrongful death relating to care and treatment rendered prior to the effective date of Public Health Law §§ 3080-3082 are conclusory without factual or legal grounds. Decedent's medical records and plaintiff's testimony conclusively establish that up until March 25, 2020, decedent was in his usual state of health. Defendants were following all protocols enacted by the New York State Department of Health and any staffing or resource shortages in combating the pandemic were not due to any willful or intentional criminal misconduct, gross negligence, reckless misconduct or intentional acts of defendants. Therefore, none of the exceptions to Public Health Law §§ 3080- 3082 are applicable to plaintiff's causes of action as defendants were arranging for or providing health care services in good faith under the extraordinary uncertainties in the early days of the COVID-19 pandemic. H) Plaintiff's Opposition Plaintiff argues that at the time Public Health Law §§ 3080-3082 was repealed, the Legislature retroactively withdrew the immunity previously granted to nursing homes. In support of this position, plaintiff relies upon the investigative report of the New York State Attorney General as revised on January 30, 2021. The report determined that a large number of 151312/2021 Page 9 of 26 9 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 nursing home residents died from COVID-19. Further, it was the lack of compliance with infection control protocols that put residents at an increased risk of harm during the COVID-19 pandemic. This lack of compliance consisted of insufficient PPE for nursing home staff which, in turn, increased this risk of harm. More importantly, the funds for PPE were diverted elsewhere to increase profits. It was the opinion of the Attorney General that some nursing homes exploited the immunity granted by Public Health Law §§ 3080-3082 and made "financially-motivated" decisions in lieu of rendering care and treatment to the residents in good faith. On April 6, 2021, approximately 66 days after the final report was released, the New York State Legislature repealed Article 30-D of the Public Health Law, §§ 3080-3082 (See, Senate Bill S5177). The purpose or general idea of Senate Bill S5177 set forth that, "This bill repeals Article 30-D of the Public Health Law...with the intent of holding health care facilities, administrators, and executives accountable for harm and damages incurred" Therefore, plaintiff argues that the remedial aspect of the repeal is readily apparent from the bill's memorandum and the Attorney General's January 30, 2021 report specifically referenced therein. Alternatively, plaintiff argues that even if the Court holds that the repeal was not intended to be retroactive, the ordinary law of negligence as applied to a nursing home's response to COVID-19 is rapidly changing. Once again, plaintiff relies upon the Attorney General's report wherein she opines that it is unclear to what extent facilities can be held accountable if found to have failed to appropriately protect the residents in their care. Here, defendants were not providing services to the decedent pursuant to the COVID-19 emergency laws that were put in place. Rather, decedent was a long-term resident in the facility pursuant to a contractual 151312/2021 Page 10 of 26 10 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 agreement. Therefore, defendants had a duty to protect decedent from infectious diseases. The protections should have been in place prior to the COVID-19 outbreak. If such protections were in place, the outbreak of COVID-19 in defendants' facility would have been minimal. Plaintiff relies upon a citation issued to defendants in 2018 for deficiencies regarding infection prevention and control. Finally, plaintiff argues that her allegations are broad enough to establish a cause of action based upon gross negligence and discovery is necessary to explore defendants' acts. Ultimately, the question of whether defendants' conduct rose to such a level is a question of fact to be determined by the jury. III) Defendants' Reply In reply, defendants argue that plaintiff has failed to establish that the Legislature retroactively repealed the immunity previously granted under Public Health Law §§ 3080-3082. Plaintiff fails to acknowledge that there is a strong presumption against retroactivity of statutes. In support, defendants point to the New York State Assembly Transcript (NYSCEF 35, 45-46, 48, 53-54, 58-60, 64-68, 70, 73, 82, 84, 86, 90-92),2 and the Senate Transcript (NYSCEF 36, p.1835-1838).3 Defendants also rely on General Construction Law § 93 and § 110. In an attempt to bypass this legal principle, plaintiff has alternatively argued that defendants breached a duty of care by failing to predict and protect against a newly-evolved pathogen that killed millions of people world-wide. At the time of the statute's enactment and decedent's demise, health care workers and patients were "dying in droves" and the immunity was broad. At the time of its repeal, the first wave had abated. 2The Members stated on the record that the repeal was not intended to be retroactive. 3Senator Mayer states that, "And I want to clarify that my understanding is that this bill is prospective, it will apply going forward." 151312/2021 Page 11 of 26 11 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 Based upon the plain wording of the statute and defendants actions in rendering COVID- 19 care and treatment to decedent despite the lack of a definitive diagnosis, no further discovery can defeat immunity. Moreover, plaintiff's failure to specifically allege gross negligence by "shoehorning" ordinary allegations of negligence is insufficient to overcome this pleading deficiency. The facts as alleged do not constitute gross negligence. It is further argued that plaintiff imputes words into the statute that do not exist. The plain wording of statute, as enacted, provides that immunity is granted where "the treatment of the individual is impacted by the health care facility's.. .decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives" (NYSCEF 33, ¶7). The question is whether the decedent's care and treatment were impacted by defendants' response to COVID-19, not whether defendants' decisions substantially or negatively impacted the care and treatment. Based upon all of the above, defendants argue that the motion must be granted. IV) Discussion a) Legislative History — Article 30-D On March 7, 2020, then Governor Cuomo signed Executive Order 202 ("E0 202"), declaring a Disaster Emergency in the State of New York (9 NYCRR 8.202).4 The preamble to EO 202 stated that it was issued in response to the World Health Organization designating the novel coronavirus, COVID-19 outbreak as a Public Health Emergency of International Concern. Additionally, on January 31, 2020, the United States Health and Human Services Secretary declared a public health emergency for the entire United States to aid the healthcare community's ability to respond to the outbreak (Id.). The preamble also emphasized that the The Executive Orders have been removed from www,govemor.ny.gov. Therefore, this Court sites to Title 9, Subtitle A, Chapter!, Part 8 of the New York Administrative Code. 151312/2021 Page 12 of 26 12 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 State of New York needed to address the threat posed by COVID-19 to the health and welfare of its residents and visitors (N.). EO 202, in an attempt to address emerging staffing shortages, permitted "unlicensed individuals, upon completion of training deemed adequate by the Commissioner of Health, to collect throat or nasopharyngeal swab specimens from individuals suspected of being infected by COVID-19, for purposes of testing; and to the extent necessary to permit non-nursing staff, upon completion of training deemed adequate by the Commissioner of Health, to perform tasks, under the supervision of a nurse, otherwise limited to the scope of practice of a licensed or registered nurse" (N. — Sections 6521 and 6902 of the Education Law). The outbreak continued to spread rapidly and on March 20, 2020, Governor Cuomo signed EO 202.10(9 NYCRR 8.202.10) to take effect on March 23, 2020. It is this EO that fostered the creation of Article 30-D of the Public Health Law, §§ 3080-3082 (See NYSCEF 35, p.55 [The page number refers to the page number of the transcript, not the digital page on NYSCEF]). This subsequent EO expanded the breadth of EO 202. Specifically, EO 202.10 granted immunity, except as to acts of gross negligence, to medical professionals, as well as shielding healthcare workers and clinical students from civil and criminal liability in effort to mitigate staffing shortages in the face of the rapidly escalating pandemic. EO 202.10 suspended the restrictions otherwise required by law for such employment and contractual services. This immunity and the related provisions were not initially included in EO 202. EO 202.10 stated in relevant part as follows: Sections 405.13 and 755.4 of Title 10 of the NYCRR to the extent necessary to permit an advanced practice registered nurse with a doctorate or master's degree specializing in the administration of anesthesia administering anesthesia in a general hospital or free- standing ambulatory surgery center without the supervision of a qualified physician in these health care settings; Paragraph 1 of Section 6542 of the Education Law and Subdivisions (a) and (b) of Section 94.2 of Title 10 of the NYCRR to the extent necessary to permit a physician assistant to provide medical services appropriate to their education, training and 151312/2021 Page 13 of 26 13 of 26 FILED: BRONX RICHMOND COUNTY COUNTY CLERK CLERK 08/04/2023 05/18/2022 11:25 11:06 AM AM INDEX INDEXNO. NO.800934/2023E 151312/2021 NYSCEF DOC. NO. 15 40 RECEIVED NYSCEF: 08/04/2023 05/18/2022 experience without oversight from a supervising physician without civil or criminal penalty related to a lack of oversight by a supervising physician; Paragraph 1 of Section 6549 of the Education Law and Subdivisions (a) and (b) of Section 94.2 of Title 10 of the NYCRR to the extent necessary to permit a specialist assistant to provide medical services appropriate to their education, training and experience without oversight from a supervising physician without civil or criminal penalty related to a lack of oversight by a supervising physician; Subdivision (3) of Section 6902 of Education Law, and any associated regulations, including, but not limited to, Section 64.5 of Title 10 of the NYCRR, to the extent necessary to permit a nurse practitioner to provide medical services appropriate to their education, training and experience, without a written practice agreement, or collaborative relationship with a physician, without civil or criminal penalty related to a lack of written practice agreement, or collaborative relationship, with a physician Subdivision (15) of section 3001, and Sections 800.3, 800.15 and 800.16 of Title 10 of the NYCRR with approval of the department, to the extent necessary to define "medical control" to include emergency and non-emergency direction to all emergency medical services personnel by a regional or state medical control center and to permit emergency medical services personnel to operate under the advice and direction of a nurse practitioner, physician assistant, or paramedic, provided that such medical professional is providing care under the supervision of a physician and pursuant to a plan approved by the Department of Health; Subdivision (2) of section 6527, Section 6545, and Subdivision (1) of Section 6909 of the Education Law, to the extent necessary to provide that all physicians, physician assistants, specialist assistants nurse practitioners, licensed registered professional nurses mid licensed practical nurses sh