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THE REPEAL OF THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) DID NOT APPLY RETROACTIVELY; THEREFORE THE STATUTE CONFERRED IMMUNITY ON DEFENDANT NURSING HOME RE: COVID-19 PRECAUTIONS; PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE ADEQUACY OF THE COVID PRECAUTIONS TAKEN BY DEFENDANT NURSING HOME (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Ceresia, determined that the Emergency or Disaster Treatment Protection Act (EDTPA), which conferred immunity on nursing homes during the COVID-19 pandemic, precluded the COVID-related negligence action against defendant nursing home. The Third Department ruled that the repeal of the EDTPA should not be applied retroactively. Therefore the statute was in effect at the relevant time. The Third Department further held that the evidence of proper COVID-19 precautions offered by the nursing home was not refuted by the plaintiff:

… [T]he ultimate repeal of the EDTPA contained no express indicator of retroactivity — rather, the Legislature simply stated that the repeal would “take effect immediately” … . * * *

Turning to plaintiff’s argument that retroactivity is appropriate because the repeal was remedial in nature, “[c]lassifying a statute as ‘remedial’ does not automatically overcome the strong presumption of prospectivity since the term may broadly encompass any attempt to supply some defect or abridge some superfluity in the former law” … . Based upon all of the foregoing, and noting that the retroactive application of the repeal of the EDTPA would merely punish healthcare providers “for past conduct they cannot change — an objective [that has been] deemed illegitimate as a justification for retroactivity” … we hold that the repeal of the EDTPA was not retroactive … . Whitehead v Pine Haven Operating LLC, 2023 NY Slip Op 06180, Third Dept 11-30-23

Practice Point: The repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) should not be applied retroactively to remove immunity related to COVID precautions conferred on a nursing home during the life of the statute.

 

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