nursing home

On 30 November 2023, the appellate division of the Supreme Court of New York reaffirmed its view that the state law which had repealed the COVID-19 immunity for nursing homes does not have retroactive effect (on the same matter, see the story published on 28 October 2022).

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 On 6 April 2021, EDTPA was repealed.

To date, courts are still debating whether such law does or does not have retroactive effect. This was also the case here.

The case involves an individual who resided at Pine Haven Nursing and Rehabilitation Center and passed away in April 2020 after having contracted COVID-19. The executor of the decedent's estate filed a negligence action against the nursing home, alleging a failure to protect the decedent from COVID-19. The defendants sought immunity under various acts, including the EDTPA.

In its first instance judgment, the Supreme Court of New York upheld the plaintiffs’ claims, deeming that the repeal was retroactive. Namely, the Court held that “the EDTPA was repealed less than a year after it was enacted, and there is the clear indication, as stated in the legislative debate on the bill and the commentary, that the repeal was to be "retroactively applied to the unfair immunity bill so as to afford nursing home residents and their families their day in court." Further, the plain language of the statute must be interpreted in a manner "so as to avoid an unreasonable or absurd application of the law" However viewed, if the repeal was not retroactive, its remedial nature would be undermined”.

This judgment was later appealed by the defendants before the appellate division of the Supreme Court which, with the judgment under review, overturned the conclusion reached by the first instance court. Indeed, the appellate judge affirmed the non retroactive nature of the repeal. In so doing, it attached decisive weight to the legislative history of the statute and to its wording.

The Court highlighted that “the sponsoring memoranda [of the repeal law] do not directly address the issue of retroactivity. With regard to the legislative floor debates, which "may be accorded some weight in the absence of more definitive manifestations of legislative purpose", the Assembly sponsor indicated his personal belief that the repeal should be retroactive but acknowledged that the bill as drafted contained no retroactivity language and repeatedly stated that the matter would ultimately be left to the courts to resolve, [...] Numerous members indicated an intent, expectation or hope that the repeal would be applied prospectively, and two members of the Health Committee stated that the committee understood that the repeal would not be retroactive. [...] On balance, the legislative history of the repeal weighs against its retroactive application”.

Furthermore, the Court held that the plaintiff’s argument that retroactivity was appropriate because the repeal was remedial in nature did not stand. “Classifying a statute as 'remedial' does not automatically overcome the strong presumption of prospectivity since the term may broadly encompass any attempt to supply some defect or abridge some superfluity in the former law”, the Court held.

As a consequence, the Court upheld defendants’ appeal, overturned the first instance judgments and dismissed plaintiffs’ claims against the nursing home.

Reference: W v. Pine Haven Operating LLC, Supreme Court of New York, Appellate Division, Third Department, 30 November 2023.

Full text of the decision available at en