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New state malpractice law, born in crisis, now drawing pushback

NY State Assembly member Richard Gottfried at a

NY State Assembly member Richard Gottfried at a New York Assembly Committee on Health public hearing on Oct. 29, 2019. Credit: Marcus Santos

ALBANY — On March 23 New York faced a crossroads during the height of the COVID-19 pandemic as hospitalizations increased by 2,635 in one day and projections showed the state would need 110,000 beds and additional nurses and physicians to staff them in a system that only had 53,000 statewide.

The state put out a call for 1.2 million additional health care workers to come to New York and for retired New Yorkers with lapsed health care licenses to return to work. Gov. Andrew M. Cuomo then issued an executive order that allowed these qualified but unlicensed workers to operate, including immunity from most malpractice lawsuits during the crisis for them and the hospitals for which they worked. It also gave the same immunity to all hospital workers.

A little over a week later, on April 3, the immunity clause was approved as part of the state budget, and extended the protection to nursing homes and their workers. The law replaced the executive order. 

Now, some attorneys and legislators say the law raised the bar for malpractice claims too high, leaving patients and their relatives without recourse in the event of mistakes that result in harm or death.

Patients or their survivors must now prove “gross negligence,” rather than just an avoidable error. The state Court of Appeals defines gross negligence as “intentional wrongdoing … (that) evinces a reckless indifference to the rights of others.”

“There is no justification for that,” said Assembly Health Committee Chairman Richard Gottfried (D-Manhattan). Gottfried said the law is so broad that it would provide immunity to a radiologist who failed to detect breast cancer, or a child’s tonsillectomy that went badly because of error. 

The law is in effect for as long as Cuomo continues his state of emergency, which is expected to run into the fall. Meanwhile, Gottfried is co-sponsoring a bill to repeal it. And Senate Health Committee Chairman Gustavo Rivera (D-Bronx) plans hearings “to delve deeply into what happened and determine responsibilities.”

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Gottfried, the Assembly Health Committee chairman and a legislator for 49 years, is among the lawmakers who said they didn’t see the measure until it was too late in the frenetic days of trying to meet the April 1 budget deadline. The immunity had been negotiated by Cuomo and legislative leaders behind closed doors as part of the budget deal, which ultimately was passed three days late.

“I saw the language after the amended budget legislation was introduced and locked in place,” Gottfried said. “There was no way to stop it.”

His Senate counterpart also wants answers.

“Bad actors on any front should be held accountable if they committed actions that jeopardize the health and safety of New Yorkers during this crisis,” Rivera said.

Cuomo senior adviser Rich Azzopardi, however, said the executive order and law were essential.

“This pandemic is an unprecedented public health crisis and we had to realign New York’s entire health care system, using every type of facility to prepare for the surge, and recruiting more than 96,000 volunteers — 25,000 from out of state, to help fight this virus,” Azzopardi said. “These volunteers are Good Samaritans and what was passed by 111 members of the Legislature was an expansion of the existing Good Samaritan Law to apply to the emergency that coronavirus created.

“If we had not done this, these volunteers wouldn’t have been accepted and we never would have had enough front-line health care workers,” Azzopardi said.

Not all agree the broad change was needed to protect workers.

“Generally, regarding front-line workers, the law was not really needed because winning a negligence claim in an emergency situation (against an individual) like this is almost impossible,” said Joanne Doroshow, an adjunct professor at New York Law School and founder of its Center for Justice & Democracy.

She said 25 states passed some version of immunity for health care workers and the facilities where they worked, but few also covered nursing homes.

“Nursing homes should never have been given immunity,” Doroshow said. “Abuse and neglect is rampant in nursing homes in the best of situations, when state inspectors and their families have access. No access and no accountability is a lethal combination … my understanding is the lobbyists for the nursing home industry were in there early with hospitals.”

Azzopardi said the law was needed to expand the Good Samaritan law so it could be applied throughout the COVID-19 state of emergency rather than, for example, at an auto accident.

“No one is shielded from liability for gross negligence, or intentional criminal conduct,” Azzopardi said. He also said there was no influence by lobbyists: “There was none. This law was intended to increase capacity and provide quality care, and any suggestion otherwise is simply outrageous.”

Yet on April 2, as the state budget was being passed, the Greater New York Hospital Association announced to its members: “GNYHA drafted and aggressively advocated for this legislation.”

GNYHA spokesman Brian Conway doesn’t dispute the group’s role.

“The immunity protections recognize the real-time decisions hospitals and their workers made during an extraordinarily challenging pandemic,” Conway said. “With the exception of intentional criminal conduct, recklessness, and gross negligence — which the law properly doesn’t cover — hospitals and their workers should not be second-guessed for trying to save as many lives as possible under the equivalent of wartime conditions.”

Stephen B. Hanse, CEO of the New York State Health Facilities Association that represents nursing homes, said the malpractice protection is necessary because of the unprecedented crisis and the frequent, sometimes conflicting directives from the federal and state governments.

One of the directives was March 25. Cuomo and his health commissioner, Dr. Howard Zucker, had issued guidance to nursing homes that they had to accept COVID-19 patients from hospitals even if they tested positive for the virus. Nursing home operators opposed the measure as dangerous for their residents, but complied. A week later, the immunity was extended to nursing homes in the new law.

“These limited protections allow providers and staff to focus on the provision of necessary care while constantly adjusting to ever changing rules and executive orders,” Hanse said.

Health care analyst Bill Hammond of the fiscally conservative Empire Center think tank agreed that the workers shouldn’t be hampered by “the fear of liability.” He said the malpractice system has long needed reform, and raising the bar to win a lawsuit has long been a goal of the powerful hospital and physician lobbies.

“I wish the medical malpractice system worked better, generally,” Hammond said. “It’s not really holding people accountable and leading to all kinds of perverse outcomes.”

However, “the process is completely indefensible, to sneak it into a big budget bill without public input,” Hammond said. “It’s a testament to the incredible influence the health care lobby has in Albany.”

“If you make it harder to litigate, you clearly are creating a disincentive for the trial lawyers,” Hammond said. “The system needs reform, but this was not the way to do it.”

The New York State Trial Lawyers Association said patients who are wronged have been silenced.

“Too often, it's the most vulnerable New Yorkers — Latinx workers, Black moms-to-be and the elderly — who are victims of medical mistakes, negligence and substandard care,” said Edward Steinberg, president of the lawyers group. “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." However, even critics of the rushed passage of the law says the need may outweigh its drawbacks.

“There was so much unknown and so many expectations,” said Cameron Macdonald, executive director of the Government Justice Center in Albany, a watchdog group that has been critical of state actions. “So allowing people to do the best they could at the time to try to be innovative was probably not the worst idea.”

“If you don’t have the staff to provide the basic care to everyone, you are endangering more lives,” Macdonald said. “This was no time for defensive medicine.”

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