Shield Physicians for Postponed Procedures, AMA Says; More

Wayne J. Guglielmo, MA

July 27, 2020

Pushing Back on COVID-Related Protections

In a related COVID-19 liability story, immunity protections passed in New York have come under fire from those who say they go too far, reports Newsday. Those protections passed first as an executive order by the governor and then as a law incorporated into the state budget.

The protections apply to qualified but unlicensed doctors and other health care workers, their hospitals, and to nursing homes. They were passed in response to the severe COVID crisis. (By late March, projections showed that the state would need more than twice its available hospital beds, along with the additional physicians and nurses to staff them.)

Under the state's new immunity standards, injured patients or their survivors must prove "gross negligence" to win their day in court, rather than prove error as the result of simple negligence. (In New York, gross negligence is defined as "intentional wrongdoing…(that) evinces a reckless indifference to the rights of others.")

These protections were (and are) urgently needed, their supporters say.

The new standards "recognize the real-time decisions hospitals and their workers made during an extraordinarily challenging pandemic," says Brian Conway, senior vice president of communications for the Greater New York Hospital Association, which helped to draft, and aggressively lobbied for, the legislation. Except for certain behaviors, including gross negligence, "hospitals and their workers should not be second-guessed for trying to save as many lives as possible under the equivalent of wartime conditions."

But some attorneys and state legislators think the emergency law raises the med-mal bar too high.

"There is no justification for that," says New York state assemblyman Richard Gottfried (D-Dist. 75, New York City), who chairs the Assembly Health Committee and worries that the new law is so broad it would shield, for example, a radiologist who failed to detect breast cancer.

Edward Steinberg, president of the New York State Trial Lawyers Association, agrees: "Too often, it's the most vulnerable New Yorkers…who are victims of medical mistakes, negligence, and substandard care…Powerful corporations, nursing homes, and hospitals must make sure they do not harm the patients who turn to them for care. Patients need to be able to hold them accountable." 

All that said, chances are good the new protections will remain in place for as long as the state of emergency does.

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