Fourth Department Unanimously Rejects Retroactive Application of EDTPA Repeal

By Elizabeth M. Midgley, Esq., Elizabeth G. Adymy, Esq. and Todd C. Bushway, Esq.

In an important and precedential decision released on October 7, 2022, New York’s Appellate Division, Fourth Judicial Department, unanimously held that the statute repealing^[1] New York’s Emergency or Disaster Treatment Protection Act (EDTPA)^[2], is to be given prospective, rather than retroactive, effect. As argued to the Court by Hurwitz Fine’s nursing home litigation team in Ruth v Elderwood at Amherst^[3], the text of the repeal statute itself and the legal principles governing statutory interpretation could lead only to that conclusion.

The EDTPA had been enacted in April of 2020 as a legislative response to the public health emergency arising from the COVID-19 pandemic and the tremendous burdens put on the entire healthcare industry in dealing with the far-ranging devastation wrought by the virus. Under its terms, EDTPA granted healthcare providers, including individual workers as well as facilities and their executives and administrators, immunity from civil and criminal liability for any injury or death alleged to have been sustained as the result of an act or omission in the course of arranging for or providing health care services, as long as certain conditions were met. This immunity was to run concurrent with the period of the COVID-19 emergency declaration issued by former Governor Cuomo and was made retroactive to the date the emergency declaration was issued, March 7, 2020. This immunity, however, was limited, and did not provide healthcare providers who caused harm or damage through an act or omission constituting willful or intentional misconduct, or intentional infliction of harm by the health care facility or health care professional.

The legislature amended EDTPA in August 2020 to limit certain aspects of the immunity. The legislature provided that the amendment would take effect immediately and would apply to claims for harm or damages if the act or omission occurred on or after the effective date of the amendment.  On April 6, 2021, just over one year after it was first enacted, EDTPA was repealed; the legislation provided simply that EDTPA was repealed and that “[t]his act shall take effect immediately.”

In Ruth, the plaintiff commenced his action alleging that his decedent, a resident of the defendant nursing home where the decedent was first diagnosed with the COVID-19 virus in the very early days of the pandemic in March/April 2020, and the second where she was treated for it, was not timely diagnosed with the virus, not adequately treated for it, and suffered a resultant stroke after the diagnosis was made. In his complaint, the plaintiff purported to allege causes of action for negligence, violation of Public Health Law §§ 2801-d and 2803-c, deprivation of dignity, medical malpractice, and wrongful death.

The nursing home defendants made a pre-answer motion to dismiss the plaintiff’s complaint premised on the immunity provisions of the EDTPA statute. The plaintiff opposed the motion, arguing that the statute repealing EDTPA was remedial in nature and thus should be retroactive in its application, thereby stripping EDTPA’s liability protection for conduct that occurred during the time EDTPA was in effect. The EDTPA repeal statute, however, is silent as to whether the repeal should be retroactive or prospective in its application. Under such circumstances there is a strong presumption favoring prospective application.^[4] New York State Supreme Court, Erie County, Justice Hon. Mark Grisanti, J.S.C., concluded that the immunity conferred by EDTPA compelled dismissal of the complaint based on the plain language of the repeal statute which simply provided that the repeal “shall take effect immediately.”

On appeal, the Fourth Department listened to argument and considered not only the parties’ written submissions, but also amici curiae briefs submitted on behalf of (i) The New York State Health Facilities Association, Inc., The Greater New York Health Care Facilities Association, and The Southern New York Association; (ii) The Greater New York Hospital Association and The Southern New York Association; (iii) the Chamber of Commerce of the United States of America, American Property Casualty Insurance Association, New York Insurance Association, Inc., American Tort Reform Association, Lawsuit Reform Alliance of New York, Center for Jurisprudence, Inc., Restaurant Law Center, and New York State Restaurant Association; as well as on behalf of (iv) the Center for Elder Law & Justice and Empire Justice Center.

The Fourth Department issued a lengthy and considered opinion, premising its retroactivity analysis on the standards set out by the Court of Appeals in Matter of Regina Co., LLC v New York State Div. of Hous. & Community Renewal^[5] and that of the United States Supreme Court in Landgraf v USI Film Prods.^[6] The Court observed that elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly. Accordingly, because giving retroactive effect to the repeal of EDTPA would adversely impact substantive rights, here an immunity defense expressly conferred by the State itself, the presumption against retroactivity is triggered and the plaintiff’s complaint must therefore be dismissed.