On Oct. 7, 2022, the Appellate Division, Fourth Judicial Department concluded that the statute repealing New York’s Emergency or Disaster Treatment Protection Act (the EDTPA) is to be given prospective application and not retroactive application. The decision has been hotly contested by plaintiffs’ firms in the midst of a recent glut of nursing home litigation cases and will significantly impact those COVID-19 litigation claims being brought against nursing homes recently in the Empire State by plaintiffs arguing that the repeal of EDTPA was meant to be retroactive, despite not having any clear indication in the legislative history of the repeal.
Background of the EDTPA
In April 2020, then-Governor Andrew Cuomo signed executive orders declaring a state of emergency in New York. Among other things, these orders provided immunity for health care workers from civil liability—except in cases of gross negligence—for injury or death alleged to have been sustained directly as a result of providing medical services in support of the state’s response to the COVID-19 outbreak. See Executive Order [A. Cuomo] No. 202.10 [9 NYCRR 8.202.21].
