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PURSUANT TO THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA), HEALTH CARE WORKERS WHO TREATED COVID-19 PATIENTS WERE IMMUNE FROM CIVIL LIABILITY; THE EDTPA HAS SINCE BEEN REPEALED; THE REPEAL SHOULD NOT BE APPLIED RETROACTIVELY; THE CAUSES OF ACTION ALLEGING IMPROPER TREATMENT FOR COVID-19 DURING THE TIME THE EDTPA WAS IN EFFECT MUST BE DISMISSED (FOURTH DEPT).

The Fourth Department determined the repeal of the COVID-19-related Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law sections 3080-3082) should not be applied retroactively. Therefore, the immunity from civil liability provided by the EDTPA for health care workers who treated COVID-19 patients was in effect when the causes of action in the complaint arose. The complaint, which alleged plaintiff nursing-home resident was not properly tested and treated for COVID-19, was dismissed:

We … conclude that applying the repeal of EDTPA to the allegations in the complaint would have retroactive effect “by impairing rights [defendants] possessed in the past, increasing their liability for past conduct and imposing new duties with respect to transactions already completed” … . “Because the [repeal of EDTPA], if applied to past conduct, would impact substantive rights and have retroactive effect, the presumption against retroactivity is triggered” … . Ruth v Elderwood At Amherst, 2022 NY Slip Op 05637, Fourth Dept 10-7-22

Practice Point: The immunity from civil liability provided to health care workers who treated COVID-19 patients while the Emergency or Disaster Treatment Protection Act (EDTPA) was in effect remains despite the subsequent repeal of the EDTPA. In other words, the repeal of the EDTPA is not given retroactive effect. The decision includes an exhaustive discussion and analysis of the retroactive application of statutes.

 

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