** COVID-19 Healthcare Provider Liability Update **

Amongst the flurry of Executive and Administrative Orders that have been issued since the advent of the coronavirus crisis, the medical profession should also be aware of a newly-enacted provision of New York State’s Education Law, which provides in pertinent part, “all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s responses to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional.”  This went into effect on March 23, 2020.

The language is directly tied to the State’s Good Samaritan Laws (Education Law sections 6527(2), 6545 and 6909(1)), which generally shield from liability certain medical professionals who are providing types of emergency care “voluntarily and without expectation of monetary compensation.”  The change in the statutory language is presumably part of the effort to increase the number of medical professionals available to combat the State’s increasing numbers of coronavirus victims.  The reference to “gross negligence” in this provision refers to actions that could be considered as having been made with “willful or wanton” disregard of the rights or safety of others.  It should be noted that the statute notably does not include hospitals.

The amended language of the statute, and its interpretation, may lead to litigation in the future. We will continue to monitor this Executive Order  and any developments related its interpretation.

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