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Third Department Joins the Fourth Department in Holding that the Repeal of the Immunity Provided for in the EDTPA is Not Retroactive

In Whitehead v. Pine Haven Operating, LLC (Doc. No. 535767), the decedent resided at Pine Haven Nursing and Rehabilitation Center from July 2017 until her death from COVID-19 complications in April 2020. Plaintiff commenced a negligence action against the nursing home defendants alleging a failure to take the proper steps to protect decedent from COVID–19. The nursing home defendants thereafter moved to dismiss the complaint, arguing they were entitled to immunity under the New York State Emergency or Disaster Treatment Protection Act (Public Health Law former art 30–D, §§ 3080–3082 [hereinafter the EDTPA]). The Supreme Court denied the motion, finding that the nursing home defendants were not entitled to immunity, and the defendants appealed.

The threshold issue before the Third Department was whether the April 2021 repeal of the immunity provided by the EDTPA was retroactive. This was an issue of first impression in the Third Department; however, the Fourth Department had already expressly held that the repeal was not retroactive in Ruth v. Elderwood at Amherst, 209 A.D.3d 1281 (4th Dep’t 2022). To date, neither the First nor the Second Department has ruled on this issue. 

In finding that the repeal was not retroactive, the Third Department noted that there is a presumption against retroactivity where legislation “would impair rights a party possessed when he [or she] acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed, ”or when legislation repeals an earlier statute.  In instances where there is a presumption against retroactivity, a statute will be deemed to apply prospectively, in the absence of plain legislative intent to the contrary. 

Here there was no such plain legislative intent. Notably, when the EDTPA was initially enacted on April 3, 2020, the Legislature expressed plainly its intent that the legislation be applied retroactively, but when the EDTPA was amended in August 2020 to limit its scope, the Legislature did not include any retroactivity language, and instead stated that the amendments would “take effect immediately” and would apply to harm that “occurred on or after such effective date”. Similarly, the complete repeal of the EDTPA contained no express indicator of retroactivity rather, the Legislature stated that the repeal would “take effect immediately.”

The Third Department also held that the legislative history of the repeal weighs against retroactivity. The Sponsoring Memoranda did not directly address this issue, and while the Assembly sponsor indicated his personal belief that the repeal should be retroactive, he acknowledged that the bill contained no retroactivity language and that the matter would ultimately be left to the courts to resolve. In contrast, numerous members of the Assembly indicated an intent that the repeal would be applied prospectively. The only comment on the Senate floor regarding this issue was one senator’s statement that her understanding was that the repeal would be prospective and liability would be applied going forward.  The Court also rejected plaintiff’s argument that retroactivity was appropriate because the repeal was remedial in nature ,noting that “retroactive application of the repeal of the EDTPA would merely punish healthcare providers for past conduct they cannot change – an objective that has been deemed illegitimate as a justification for retroactivity.”

Having thus decided that the nursing home defendants were potentially entitled to the immunity provided for by the EDTPA, the Third Department went on to hold that they established their entitlement to such immunity through an affidavit from their director of nursing who affirmed that, beginning in early March 2020, the staff administered numerous state and FDA approved steps to prevent the spread of COVID-19, including restricting visitation, screening employees, and restricting dining services. This affidavit established that the care provided to decedent “occur[red] in the course of arranging for or providing health care services and the treatment of [decedent was] impacted by the healthcare facility’s or health care professional’s decisions or activities in response to or as a result of the COVID–19 outbreak and in support of the state’s directives” (Public Health Law former § 3082[1][b]) and, further, that such health care services were provided in good faith (see Public Health Law former § 3082[1][c]), as required to demonstrate defendants’ entitlement to immunity from civil liability (see Public Health Law former §3082[1]). Additionally, although plaintiff asserted a cause of action for gross negligence, the Third Department held that this claim consisted of nothing more than “bare legal conclusions with no factual specificity,” which do not suffice to withstand a motion to dismiss. Accordingly, the nursing home defendants were entitled to dismissal of all causes of action.

As noted above, neither the First nor the Second Department has ruled on the retroactivity issue. However, now that both the Fourth Department and Third Department are in agreement that the repeal is not retroactive, there is a greater likelihood that the remaining Departments will find against retroactivity, and affirm the liability protection given to healthcare workers who labored under extremely dangerous and taxing circumstances during the initial months of the COVID-19 pandemic.

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