Exterior view of the New York state Capitol Wednesday, June...

Exterior view of the New York state Capitol Wednesday, June 19, 2019, in Albany, N.Y.  Credit: AP/Hans Pennink

ALBANY — The State Legislature on Thursday agreed to pass a bill that would roll back part of the malpractice immunity granted hospitals, nursing homes and health care workers during the height of the COVID-19 emergency.

The measure wouldn’t be retroactive to the beginning of the virus emergency, as several Democrats have proposed. But the legislation would no longer provide hospitals and nursing homes immunity from all but the most egregious malpractice lawsuits for care of non-COVID patients. 

The measure passed 44-16 in the Senate Thursday with bipartisan support. The Assembly passed the bill Thursday night.

Sen. Todd Kaminsky (D-Long Beach) argued that now that the state’s COVID-19 crisis has waned to manageable levels, hospitals and nursing homes should no longer enjoy immunity from all but the most serious malpractice lawsuits brought by patients and their survivors for non-COVID-19 care.

“Now that we are certainly far from the height of the pandemic in April, we expect regular, proper treatment to be given and that families should have recourse … for any malpractice they feel had happened,” Kaminsky said.

In March, Cuomo raised the bar for malpractice cases against hospitals from avoidable errors to allowing cases only of “gross negligence.” That’s defined by the state Court of Appeals as “intentional wrongdoing … (which) evinces a reckless indifference to the rights of others.”

On April 3, the immunity was made law. It was inserted deep in the state budget agreement after the immunity was extended to nursing homes and their workers.

Cuomo won’t say if he will sign the measure.

“This is just a big, wet kiss on the lips to the trial lawyers,” said Sen. George M. Borrello, a Western New York Republican. “We are going to let loose the dogs of trial lawyers on the people who are protecting the most vulnerable citizens of our state.”

The politically powerful New York Trial Lawyers Association said Cuomo’s broader immunity was a gift to the hospital lobby, another political power. The defense lawyers’ group said Cuomo had silenced the voice of “the most vulnerable New Yorkers — Latinx workers, Black moms-to-be and the elderly — who are victims of medical mistakes, negligence and substandard care.”

The Greater New York Hospital Association, however, said the bill would harm health care facilities in the event of a resurgence of COVID-19, which could impact treatment of non-COVID cases. The association said the legislature’s action would dissuade retired physicians and nurses and volunteers from other states to again come to New York’s aid in a health crisis, as tens of thousands did this spring.

“The law’s protections … are eminently reasonable,” the association said in a plea to its members to lobby their local legislators. “The immunity does not apply to intentional criminal conduct, recklessness, or gross negligence … This crucial flexibility is fair, given that no one can predict with certainty what the virus has in store for us in the coming weeks and months.”

Nursing homes also opposed the measure.

“This legislation assumes that the pandemic only affected those who were infected, and as such fails to understand the vast impacts this virus imposed upon all residents, staff and providers throughout the health care continuum,” said Stephen Hanse, CEO of the New York Health Facilities Association and NYS Center for Assisted Living.

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