Senior Trial Partner William P. Brady, Partner Gregory J. Radomisli and Associate Fiachra Moody secured summary judgment in a case involving a then 45-year-old female with a history of anemia who presented to our client hospital emergency department in March of 2020 with complaints of chest pain x 1 day. She was admitted to the MICU with acute respiratory distress syndrome and myocarditis in the setting of COVID 19. She had a long and stormy hospital course, which included multiple failed extubation attempts requiring a tracheostomy, PEG placement, infections, cardiogenic shock, DIC, adrenal hemorrhage, DVT with IVC filter placement, renal failure, cholecystitis, and sacral decubitus ulcers, which required debridement. She was discharged to an acute rehabilitation center in late July 2020.
Plaintiff claimed that our client hospital’s staff negligently allowed the plaintiff to develop decubitus ulcers, failed to properly turn and position her, and failed to take other interventions to prevent the plaintiff from developing pressure sores.
MCB moved for summary judgment with the support of a geriatrician to establish that the care provided to plaintiff was impacted by the Hospital’s response to COVID-19 and was not grossly negligent or reckless, availing us of the immunity provided by Article30-D of the Public Health Law and the PREP Act.
In opposition, plaintiff argued that the repeal of the EDTPA, as of April 6, 2021, was retroactive and, therefore, no immunity should be afforded to our client hospital. In reply, we cited to the numerous appellate level decisions, including Hasan v Terrace Acquisitions II LLC d/b/a Fordham Nursing and Rehabilitation Center a/k/a Kings Terrace Nursing Home (2024 NY Slip Op 00739 [1d Dept. 2024]), that held that the immunity repeal was not retroactive.
The Court found that our client hospital had met the burden of establishing a prima facie case in relation to the immunity from liability conferred by the EDTPA and found that the gross negligence claim asserted by plaintiff, which if established would have precluded EDTPA immunity, was inadequately pled to survive a motion to dismiss.