New York’s Medical Malpractice Moratorium
New York was the first state to implement a medical malpractice moratorium during the pandemic. Two other states soon followed: New Jersey and Michigan. Of course, these three states have the majority of COVID-19 cases in the country. Thus far, the federal government has not weighed in on the issue, but it appears likely that some other states may intervene on behalf of doctors.
Why is the Moratorium Necessary?
States like New York, which have higher medical malpractice payouts than any other state in the country, are now on the frontlines of a deadly battle against the pandemic. They are being forced to make triage decisions based on the lack of availability of respirators and other medical equipment. In these cases, the laws are there to insulate the doctors from liability if they choose not to treat someone who is in advanced stages of the disease or appears likely to succumb to the disease. The legislators of these districts hope to avoid lawsuits based on these types of decisions.
Who Does the Law Pertain To?
Andrew Cuomo, the governor of New York, passed an executive order. Days later, the legislature passed a bill extending the protections fo the executive order to all personnel and volunteers. The law will be applied to health care facilities impacted by COVID-19. This doesn’t necessarily mean that the patient needs to have COVID-19 related complications. The health care facility must simply be impacted by the pandemic.
Additionally, the immunity is not complete. The health care provider must be providing emergency services to COVID-19 patients in order to qualify for medical malpractice immunity. There is also a “good faith” provision in the text of the law.
The immunity applies to both criminal and civil causes of action against health care providers fighting the COVID-19 epidemic.
The Immunity is Not Complete
Actions alleging gross negligence or criminal conduct are still allowed under the text of the bill. However, plaintiffs will be forced to show that the doctor, in the practice of medicine, made a decision so egregious or reckless as to qualify for punitive damages under the law.
Is This Legal?
That depends. Right now, Florida Governor Ron DeSantis is considering a bill that would give nursing homes complete immunity from COVID-19 lawsuits. Since the text of such a law targets a demographic (and not services related to a disease) the law would likely be struck down by the Florida Supreme Court for violating the Equal Protection Clause of the Constitution. You can simply say that one demographic cannot sue for damages while leaving every other demographic still able to sue.
Meanwhile, the New York State law occupies a fuzzier place. Since a situation like this is unprecedented, the state will likely have broad leeway to insulate health care providers from lawsuits that emerge due to COVID-19 emergency responses.
Talk to a St. Petersburg Medical Malpractice Attorney Today
If you have any questions concerning an injury you suffered after medical care, call the St. Petersburg medical malpractice attorney at Masterson & Hoag, P.A. to set up a free consultation.