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New York Rolls Back Medical Malpractice Shield During COVID-19 Pandemic

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Peter J. Gregory
Dec 5, 2020
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Early in the COVID-19 pandemic, New York State passed the Emergency or Disaster Treatment Protection Act (“EDTPA”) waiving medical malpractice liability for the duration of the declared COVID-19 state of emergency for all health providers and facilities impacted by the novel coronavirus outbreak. The wide shield affected not only COVID-19 patients, but also any patient who, for any reason, presented at an impacted healthcare facility or to a healthcare professional during the period of the COVID-19 emergency declaration.

More recently, Governor Cuomo signed Senate Bill S8835 into law, which partially rolled back some EDTPA protections following concerns that they were too broad.  The new law still provides liability protections for health care professionals regarding: (i) COVID-19 prevention services; (ii) the treatment of COVID-19 patients' comorbidities; (iii) the treatment of, and decisions made by healthcare providers with respect to, non-COVID-19 patients; (iv) the arrangement of COVID-19 services to be performed by other providers; and (v) decisions made pursuant to the emergency rules that are determined to not be appropriate. The law maintains the previously-enacted protections related to the diagnosis and treatment of COVID-19 patients, as well as protection for healthcare providers "where appropriate pursuant to a COVID-19 emergency rule".

However, the revision now allows nursing homes and other health care providers to be held liable for negligent care provided to patients that are not being treated for COVID-19, even during the COVID-19 emergency declaration.  Notably, the EDTPA changes were made prospectively, not retroactively, so incidents that occurred prior to the law’s revision may still be shielded by the original EDTPA protections. 

Incidents of medical malpractice can result in serious injuries or even death.  If you or a loved one was injured, please contact us to learn more.

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About the author:  Peter J. Gregory is a partner with the firm.   He is a trial lawyer with extensive experience resolving disputes in state and federal trial courts.  His personal injury practice focusses on advising clients who have been injured or lost loved ones in accidents caused by the carelessness or recklessness of others.  Please feel free to contact him directly at or (585) 512-3506.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.