The country is in the midst of a crisis in size and scope not seen since 1918, and the medical community is on the front lines protecting and helping the public. To successfully navigate this dangerous and unprecedented environment, incredible measures must be taken. There is no vaccine to stop the spread of this deadly virus and no medicine to provide a simple cure. There are not enough tests. There is not enough personal protective equipment for medical personnel. There are not enough ventilators, hospital beds, and staff to handle the mounting crisis. In fact, Gov. Andrew Cuomo sent out a call to ask retirees and health care workers from around the country to come to New York to treat its patients, and thousands have answered that call. Field hospitals have been set up in Central Park and at the US Open Tennis Center. The naval hospital ship, the USNS Comfort arrived in New York on March 30, 2020 to help with the lack of available beds. Moreover, all elective surgeries and procedures have been cancelled to increase the number of beds available for COVID-19 victims. With all these challenges, the medical community is nonetheless doing an extraordinary job, putting themselves at risk, to protect, serve and care for their fellow citizens. In turn they certainly deserve our gratitude and protection.

Recognizing this, on March 23, 2020, Governor Cuomo used his authority under New York's Disaster Act to immunize health care workers from liability from lawsuits alleging ordinary negligence, while assisting New York's response to the COVID-19 pandemic (see Executive Order 202.10). This effort was hailed as an appropriate response to the COVID-19 crisis. See, e.g., Thomas A. Moore and Matthew Gaier, "COVID-19: Gov. Cuomo's Executive Order and Other Legal Measures," NYLJ (March 30, 2020). Shortly thereafter, the Legislature adopted the spirit of Executive Order 202.10 and codified it by amending the Public Health Law to immunize physicians, nurses, hospitals, nursing homes, administrators, board members and other health care workers from claims of ordinary negligence. See Public Health Law §3082. The statute took effect immediately upon its enactment and applies retroactively with regard to any acts or omissions that took place on March 7, 2020 and will continue in effect until the COVID-19 crisis abates.

The swift actions of the Governor and Legislature should serve as a model for legislation to be implemented across the country. See Robert Klitzman, M.D., "Wrenching Decisions They Face," New York Times (April 4, 2020). Health care workers are facing an unprecedented pandemic with equipment and supply shortages, and overcrowded hospitals. To promote the public health, safety and welfare of everyone, Hospitals and medical providers need to be able to make treatment, staffing or resource allocation decisions during this crisis without concerns about the specter of future litigation. The medical community as a whole deserves our gratitude, understanding and support for their efforts, and now in New York, they will be afforded broad legal protection from civil claims alleging negligence.

The New Additions to the Public Health Law

Newly enacted Public Health Law §3082(a) states that health care providers and health care facilities shall be immune from civil or criminal liability "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 care" when three elements are satisfied.

The first requirement for immunity is that the care is being arranged or provided "pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law." Public Health Law §3082[1][a]. A COVID-19 emergency rule is an executive order, declaration, rule or regulation by either the state or federal governments that waives standards of care. See Public Health Law §3081[7]. For example, Executive Order 202.10 or the actions taken under the federal PREP Act would be but some examples of a "COVID-19 emergency rule."

The second requirement for immunity is that:

the act or omission occurs in the course of arranging for or providing health care services and the treatment of the individual is impacted by the health care facilities 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 §3082[1][b]. This provision makes clear that immunity will apply to the care of patients with or without COVID-19.This is appropriate as the current crisis impacts all aspects of health care. Elective surgeries and procedures have been cancelled. Work hour limitations have been suspended to facilitate staffing during the crisis. Physician resources have been reallocated leading some health care providers to treat patients outside of their core specialties. Supervision rules have been relaxed enabling a variety of professionals to provide primary treatment. Each of these challenges, impacts not only the care rendered to COVID-19 patients, but also other patients who would be treated by the physicians now being called into service to treat COVID-19. The issue of staff shortages will no doubt be compounded further if the shortage of personal protective equipment is not resolved and health care providers themselves become ill. America is engaged in a battle from coast to coast that is impacting every citizen, and the legislature's recognition of this reality is a critical aspect of this statute enabling health care providers to make these difficult decisions to hopefully save lives.

The third element for immunity is straightforward. The care being provided must be done "in good faith." Public Health Law §3082[2][c]. The good faith requirement has been included because the statute does provide an exception to immunity. Immunity does not apply when the conduct constitutes "willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the heath care facility or health care professional." Public Health Law §3082[2]. It specifically provides that any actions taken as a result of staffing shortages or supply shortages "shall not be considered willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm" Id.

The Gross Negligence Standard

The only way, therefore, to pierce the statutory immunity provided by the Legislature is to establish that the acts or omissions with regard to treatment amount to gross negligence or its equivalent. In Sommer v. Federal Signal, 79 N.Y.2d 540 (1992), the Court of Appeals reviewed the distinction between ordinary negligence and gross negligence.

The defendant in Sommer was an alarm system company who entered into a contract with its customer that limited the alarm company's liability in tort to gross negligence. A few days prior to the incident, the alarm company's customer asked that its system be deactivated because of construction work. The system continued to transmit information to the alarm company, but the alarm company did not report the information to authorities. A few days later, the customer called back and wanted the alarm reactivated. However, the alarm company employee was confused by the call. Instead of reactivating the system, the employee deactivated it. Thus, fire alarm signals were received by the company, but the employee did not call the fire department because he believed the customer had deactivated service. As a result, a four alarm fire engulfed the property unchecked, causing significant damage.

The Sommer defendant moved for summary judgment and that motion was denied. In affirming that denial, the Court first defined the standard of gross negligence. The court held that gross negligence "is conduct that evinces reckless indifference to the rights of others." Id. at 554. The court then applied this standard to the evidence in Sommer and found there was a possibility that the defendant acted with gross negligence. "Another reasonable view of the evidence, however, is propounded [by the building owner]: that instead of pausing to dispel any confusion surrounding the subscriber's instruction to activate the system—without verification or investigation—rushed to his own conclusion, recklessly indifferent to the consequences that might flow from a misrepresentation." Id. at 555.

Gross Negligence in Response to COVID-19

As the Governor has pointed out, New York is likely going to be faced with a shortage of medical equipment, staff and hospital beds. Difficult decisions and actions will need to be made by health care providers. Indeed, Executive Order 202.10 modifies other provisions of the Education Law and New York Code related to work hours, staffing, and credentials in order to enable physicians to better respond to this mounting crisis. See, e.g., Education Law §§6530[32]; 6542[1]; 6549[1]; 8 NYCRR 29.2 (a)(3); 10 NYCRR §§58-1.11, 405.4[g][2][11], 405,4[b][6], 405.10, 405.13, 405.22. Recognizing this, the Legislature has made the policy determination that decisions with regard to staffing or supplies can never be considered gross negligence. Public Health Law §3082[2]. Put differently, health care providers and facilities are appropriately immune from suit when the claim arises out of staffing or supply issues.

Furthermore, to the extent the statute allows for a gross negligence analysis with regard to treatment itself, it is important to note that gross negligence, like the standard of care, must reflect the realities of the situation when care was rendered. Any attempted future liability claim, therefore, cannot be judged within the context of the ordinary standard of medical care. These are extraordinary times and the ordinary standard of care is no longer applicable. Thus, in turn, gross negligence must also be viewed in the proper context of these extraordinary times and the difficult choices medical professionals have had to make under these circumstances.

The Governor, through the powers granted to him by the Legislature, has taken the necessary steps to make sure that health care providers are insulated from claims of ordinary malpractice. The Legislature then took the next step in codifying these immunities in the Public Health Law. As a result, the fact patterns that could potentially meet the gross negligence standard, if any, should be very few and far between. Our medical professionals have risked and are continuing to risk their lives to protect and help us during this crisis. They deserve our continued support, understanding and protection as well. New York has taken the lead through executive and legislative action to protect its health care workers. These actions should serve as a model for other states to follow.

Peter Kolbert is the Senior Vice President and Chief Claims Officer of Healthcare Risk Advisors, a division of The Doctors Company. Caryn Lilling is a founding partner of Mauro Lilling Naparty.