Holder v. Jacob; The First Department Increases a Health Care Provider’s Burden on a3211(a)(7) Motion to Dismiss Based Upon EDTPA Immunity
Published by MCB Appellate Practice Group
Barbara D. Goldberg, Gregory A. Cascino, andRichard Wolf
In Holder v. Jacob, a patient who presented to the defendant hospital with complaints related to ulcerative colitis in April 2020 – during the initial wave of the COVID-19 pandemic – allegedly fell while attempting to reach the bathroom and suffered significant head injuries that were not timely diagnosed. The hospital made a CPLR 3211(a)(7) pre-answer motion to dismiss, premised upon the immunity provided to health care providers pursuant to the New York Emergency Disaster Treatment Protection Act (EDTPA); former New York Public Health Law §§ 3080-3082. Notably, from March 7, 2020 until the EDTPA was amended effective August 3, 2020, this immunity applied to claims by patients who contracted/were treated for COVID-19 at health care facilities, as well as to claims by patients whose care for conditions unrelated to COVID was impacted by the facilities’ response to the pandemic.
In support of its motion, the hospital and two of its medical professionals named as defendants submitted substantial evidence as to the significant facility-wide impact of the pandemic, including “dramatically increased patient loads; time protective gear for each patient encounter, which reduced the time they could spend with patients; shortages of medical supplies; staffing shortages; and redesignation of patient wards.” The First Department – citing the EDTPA language that the immunity applies where the act or omission occurs“ in the course of arranging for or providing health care services and the treatment of the individual is impacted by the health care facility’s … decisions or activities in response to or as a result of theCOVID-19 outbreak….” – held this was insufficient to prevail on a 3211(a)(7)motion.
Specifically, the First Department noted that the affidavits submitted by defendants “described numerous and pervasive systemic changes to hospital operation and patient care occasioned by the pandemic” and “certainly suggested that plaintiff’s treatment… was impacted” by the hospital’s “decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives.” The Court also noted that “it may be difficult to recollect and transcribe individual instances in which the care of a particular patient –even if similarly situated to every, or at least other, patients – was impacted by a hospital’s or provider’s choices or activities, particularly at a time when recordkeeping strictures were relaxed under Executive Order 202.10 in favor of focusing attention on action.” Nevertheless, it held that where a3211(a)(7) motion is predicated on what is asserted to be a complete defense, and that motion is supported by evidence, “the evidence of the defense must be conclusive.” The Court found that the “suggestion” that the plaintiff’s treatment was impacted by the hospital’s response to the pandemic did no satisfy this standard requiring “conclusiveness,” and affirmed the denial of the motion.
While the majority of the caselaw that has developed regarding the scope of the EDTPA immunity involves claims by the estates of patients who contracted and/or were treated forCOVID-19 at the defendants’ health care facility, Holder is significant in that the plaintiff did not contract or receive treatment forCOVID-19 at the defendant hospital. When making 3211(a)(7) pre-answer motions in such cases, a connection between the facility’s response to the COVID -19 pandemic and the impact on the specific patient’s treatment may be more difficult to establish, especially because record keeping guidelines were relaxed at the time.
Given the First Department’s focus on the procedural posture of the case, and the significant burden on defendants on CPLR 3211(a)(7) motions generally, Holder does seem to suggest that CPLR 3212 summary judgment motions may be a more appropriate avenue to seek dismissal in such cases. If, for example, the defendant makes a prima facie showing that the particular patient’s care was impacted by staffing shortages on the patient’s floor resulting from the facility’s response to the pandemic, or that particular medications, supplies, or equipment were unavailable to the patient because their use was prioritized for COVID-19 patients, it may be difficult for the plaintiff to raise an issue of fact in opposition. In addition, it remains to be seen whether other Departments of the Appellate Division will take the same approach as the First Department. A conflict between different Departments could potentially set the stage for review by the Court of Appeals.
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