At the outset of the COVID-19 pandemic, the legislature of the State of New York enacted the Emergency or Disaster Treatment Protection Act (EDTPA), which initially provided, with certain exceptions, that “any health care facility or health care professional shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services".

That immunity applied as long as three conditions were met: (i) the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; (ii) the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives; and (iii) the services were arranged or provided in good faith. On 6 April 2021, EDTPA was repealed. Litigation arose over the issue of whether the repeal was retroactive or prospective.

By decision of 7 October 2022, the Fourth Department of the appellate division of the Supreme Court of New York affirmed the ruling of the New York Supreme Court, Erie County, which had granted a motion to dismiss on immunity grounds filed by nursing homes in a COVID-19 related liability suit. Namely, the nursing homes had alleged they were covered by the immunity provided for by the EDTPA because its subsequent repeal did not have retrospective effect. According to the Court, “because the repeal of EDTPA, if applied to past conduct, would impact substantive rights and have retroactive effect, the presumption against retroactivity is triggered". Furthermore, from the wording of the statute, it did not result that the legislature had the intent to repeal the EDTPA retroactively. Only a clear expression of the legislative purpose, “which assures that the legislative body itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits” may have justified a retrospective application of the statute, the Court said.

Accordingly, it concluded that – as already found by the lower court – the defendants nursing homes were entitled to the immunity from liability conferred by EDTPA and dismissed the claim filed against them by the parents of a person who died from COVID-19 following treatment in their facilities.

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