DECISION & ORDER This medical malpractice action arises from the care and treatment of Abraham Back (“Back” or “Plaintiff’) during the COVID-19 pandemic, alleging Dr. Dalkeith Facey, D.O. and Massena Memorial Hospital (sued herein as Massena Hospital, Inc., Massena Memorial Hospital, Inc. and St. Lawrence Health System, Inc.) (collectively “Defendants”), deviated from accepted standards in performing a laparoscopic cholecystectomy (surgical removal of the gall bladder) on April 3, 2020, causing Back to suffer prolonged care and treatment, additional surgery, permanent severe pain and other injuries. Back’s spouse, Melerena Back, asserts a derivative claim. Defendants seek dismissal of the complaint pursuant to CPLR §3211 (a) (7) for failure to state a cause of action premised upon COVID-19 liability immunity pursuant to the New York Emergency or Disaster Treatment Protection Act. Plaintiffs oppose the motion, arguing Defendants’ conduct falls outside the protections of the Act.1 For the reasons which follow the motion is denied. BACKGROUND A. Plaintiff’s Medical Encounter At approximately 1:00 A.M. on April 2, 2020, in the early months of the COVID-19 pandemic, Back presented to the Emergency Department of Massena Memorial Hospital (“MMH”) with complaints of right upper quadrant abdominal pain and nausea. (NYSCEF Doc. 28 at 57-66; 186-187). He was examined by attending night physician Dr. Ryan Coates (“Coates”), who suspected Back was suffering a gallbladder attack. Id. Ultrasound showed the presence of gallstones and mild dilation of the common bile duct. Id. Coates referred Back to Dr. Facey, a surgeon employed by MMH, whose examination yielded a diagnosis of acute cholecystitis requiring a cholecystectomy. Id. During the course of April 2, 2020, Back began to develop a new onset cough, shortness of breath, a fever and decreased oxygen levels. (Doc. 28 at 71-73, 80-81, 251, 260). He was transferred to a negative pressure/airborne isolation room and underwent testing to rule out COVID-19, among other things. (Doc. 28 at 57-66; 258). Medical records for April 2, 2020, show: Back was admitted to MMH from its Emergency Department at 3:13 A.M.; scheduled for an “MRCP and possible cholecystectomy [that day]“2; cleared for surgery by Dr. Nargish Akhter at 8:30 A.M.; noted to have a “low grade fever” at approximately 6:00 P.M. with an “unremarkable” chest x-ray; and, rescheduled for surgery on April 3, 2020, as the “OR” was not available. (Doc. 28 at 59, 65, 67, 70, 71, 73, 79). Back underwent a laparoscopic cholecystectomy performed by Dr. Facey on April 3, 2020. (NYSCEF Docs. 27 at 25-27; 28 at 53-54, 80). On April 5, 2020, Back’s post-surgical increase in bilirubin and liver enzyme levels resulted in his transfer to Champlain Valley Physicians Hospital (CVPH) for an endoscopic retrograde cholangiopancreatography (ERCG) to determine the cause. (Doc. 28 at 104, 259). Back remained at CVPH for further testing and treatment after an “unsuccessful” ERCG revealed injury to the common bile duct, later undergoing open bile duct reconstruction surgery at the University of Vermont Medical Center (UVMC) on July 7, 2020. (Docs. 27 at 4-5; 28 at 104, 106, 241, 257; Doc. 43 at 10). This suit followed. B. New York State COVID-19 Response On March 7, 2020, then-New York Governor Andrew Cuomo issued Executive Order (“EO”) No. 202, declaring a state of emergency in New York State resulting from the COVID-19 pandemic. To meet hospital needs of burgeoning COVID-19 patient caseloads, EO No. 202.10, issued on March 23, 2022, required the Commissioner of Health to “direct…all general hospitals…to increase the number of beds available to patients, including cancelling all elective surgeries and procedures” as defined by the Commissioner and requiring hospitals to submit COVID-19 Plans, or “Surge Plans” to the New York State Department of Health in pursuit of the goal. As an enforcement measure, the Commissioner was further authorized to suspend or revoke the operating certificate of any hospital that did not meet the capacity directives. On April 3, 2020, New York State passed the Emergency or Disaster Treatment Protection Act (EDTPA). See L. 2020, C. 56, Part GGG, §1. Codified in Public Health Law (PHL) Article 30-D at §§3080-3082, the EDTPA established limitations on health care facilities’ and health care professionals’ liability during the pandemic, retroactive to the initial emergency declaration on March 7, 2020. Id. Amended once, on August 3, 2020, to scale back immunity provisions for certain claims arising on or after August 3, 2020, (see L. 2020, C. 134, §1-3), it was altogether repealed on April 6, 2021 (see L. 2021, C. 96, §1). The stated purpose of the EDTPA, as set forth in PHL §3080, was “to promote the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency.” Set forth in PHL §3082, the following criteria must be met to qualify for immunity under the EDTPA: 1. Notwithstanding any law to the contrary, except as provided in subdivision two of this section, 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, if: (a) the health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; (b) 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 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; and (c) the health care facility or health care professional is arranging for or providing health care services in good faith. 2. The immunity provided by subdivision one of this section shall not apply if the harm or damages were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the health care facility or health care professional providing health care services, provided, however, that acts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm. PHL §3081 (5) sets forth the definition of “health care services” covered by the EDTPA: The term “health care services” means services provided by a health care facility or a health care professional, regardless of the location where those services are provided, that relate to: (a) the diagnosis, prevention, or treatment of COVID-19; (b) the assessment or care of an individual with a confirmed or suspected case of COVID-19; or (c) the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration. CONTENTIONS OF THE PARTIES Defendants seek dismissal of the Complaint citing EDTPA protection pursuant to PHL §3082 (1). In support of their immunity claim they offer Back’s MMH medical records and the affidavit of Ralene North, Registered Nurse and Chief Nurse Executive at MMH during the events at issue. (Doc. 29). North states that in compliance with New York State directives MMH developed a “Surge Plan” (Doc. 30) to bring additional inpatient beds “online” in the former medical-surgical unit by March 31, 2020, and repurposed two of three operating rooms to conserve PPE3, beds, and ventilators. Id. at 4. She further posits Back’s treatment at MMH “cannot be extricated from the COVID-19 pandemic or Defendants’ response thereto and many aspects of the care were impacted by the required measures undertaken to comply with the law and policy.” Id. 7). Specifically, North points to the COVID-19 related: shortage of radiology technicians causing a several-hours delay in the reporting of results for Back’s radiological study done the morning of April 2, 2022; reduction in the number of operating rooms; reduction in available anesthesiologists4 such that Back’s surgery occurred on April 3rd instead of April 2nd; and, Back’s isolation after developing symptoms which required COVID-19 screening, as all having impacted his care while at MMH. Id at
8-10. North further states that MMH staff “provided care and treatment to Back in good faith during a time when there were more questions than answers in the fight against COVID-19.” Id at 11. Plaintiffs oppose the motion arguing: Defendants have not met their burden on motion; no valid legal basis exists to dismiss the complaint pursuant to the EDTPA; facts relevant to the issues before the Court are unavailable to Plaintiffs since no depositions have occurred and discovery demands specifically related to the issues raised remain outstanding; and, Defendants’ reckless conduct falls within the exceptions to EDTPA immunity pursuant to PHL §3082(2). Plaintiffs rely on the affidavit of their expert (Doc. 43) to argue that neither the pandemic, nor Defendants’ response to it in complying with state directives, impacted, in any way, Back’s treatment which resulted in his injuries. To this end, Plaintiffs make no claim as to the timing of Back’s surgery, but rather only to the manner in which surgery was performed. Upon review of Back’s medical records, Plaintiffs’ expert opines, within a reasonable degree of medical certainty based upon his education, training and experience, that there were a number of deviations from accepted standards in the performance of Back’s surgery. Id. at
