View of the Senate Chamber floor during a legislative session...

View of the Senate Chamber floor during a legislative session at the Capitol in Albany on March 8. Credit: AP/Hans Pennink

ALBANY — The state Senate on Wednesday gave final legislative approval to repealing a law that has provided hospitals and nursing homes immunity from all but the most egregious malpractice during the COVID-19 pandemic.

The measure would end immunity for incidents that happen after the bill becomes law, but the measure wouldn't apply retroactively to past cases. The bill would become law when and if Cuomo signs it.

The bill, sponsored by Sen. Allesandra Biaggi (D-Mount Vernon), passed the Senate unanimously. In the Assembly, it was sponsored by Assemb. Ron Kim (D-Flushing) and was approved on March 4.

"This immunity stripped thousands of grieving families of their right to seek legal recourse," Biaggi said.

She cited a report by state Attorney General Letitia James that said the immunity measure, which was first enacted by Gov. Andrew M. Cuomo, may have provided an incentive for facilities to cut corners to increase profits.

"The immunity provisions were always destined to protect corporate leadership," Biaggi said, "not front line workers."

"It’s time," said Sen. Shelley Mayer (D-Yonkers). "Let us learn from the past year and protect the families … going forward in our quest to have justice for all of them."

The measure was created a year ago by Cuomo's executive order as the pandemic raged. He said then that the immunity was needed because physicians, nurses, other health care professionals as well as hospitals, nursing homes and clinics were working diligently to treat patients under great stress that threatened to overwhelm the hospital system. The executive order sought to hold the professionals harmless from mistakes committed when little was understood about COVID-19 as long as the mistakes weren’t intentional or gross negligence or illegal.

But the measure also meant families who lost loved ones had no civil recourse if they felt a relative died unnecessarily.

The measure also set off a struggle of powerful lobbying forces in Albany. Cuomo’s immunity measure was supported by the hospital groups, including the Greater New York Hospital Association; it was opposed by the Trial Lawyers Association.

Cuomo has yet to say if he would sign the bill into law or veto it. In this legislative session, for the first time in Cuomo’s decade in office, the Democrats who control the Assembly and Senate have enough votes to override a veto.

"We strongly oppose this push to repeal the law," said Brian Conway of the Greater New York Hospital Association. "In passing these important liability protections, the legislature recognized the incredible sacrifices that health care workers, hospitals, and other facilities made in caring for COVID-19 patients under extraordinarily challenging circumstances."

Operators of health care facilities said they now fear a flood of malpractice lawsuits because people are still dying from the pandemic. That would also likely trigger a higher cost or inavailability of malpractice insurance, which would raise costs to patients, the operators said.

"We are still in a public health emergency," said Stephen Hanse of the New York State Health Facilities Association. "To rescind this law in the middle of a public health emergency is shortsighted."

The concept of the repeal is understandable from the standpoint of families and the legislature, said Michael Balboni, executive director of Greater New York Health Care Facilities Association.

"In reality, however, a pandemic is an act of God and that makes determining the causal relationship between the illness and any type of negligence incredibly difficult, if not impossible," Balboni said.

Attorney John Dalli of Mineola said the repeal is a step to holding nursing home and hospital operators accountable for care.

"If a nursing home cannot be held responsible for being negligent, residents’ lives are at risk," said Dalli, co-chairman of the nursing home committee of the state Trial Lawyers Association.

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