The following papers read on this motion: Notice of Motion/Supporting Exhibits X Notice of Cross Motion/Supporting Exhibits X Affirmation in Opposition/Memorandum of Law X Reply Affirmation X Defendants, Yvette Crumity, R.N. (Nurse Crumity), Dina Day, R.N. (Nurse Day) and Spring Creek Rehabilitation and Nursing Care Center (Spring Creek), move this (Motion Seq. 001) pursuant to CPLR §3211(a)(7), for an order dismissing the complaint against them based upon the immunity provided by the Emergency or Disaster Treatment Prevention Act (EDTPA). Defendant, Suzette Rebecca Ryan, A-GNP (Nurse Ryan), moves this court (Motion Seq. 002) dismissing the complaint against her pursuant to CPLR 3211(a)(7) based upon the immunity provided by the EDTPA. Plaintiff, Karen Quattlebaum (Karen) as Administrator of the Estate of Emily Quattlebaum (Emily), deceased, opposes both motion. Karen commenced this nursing home/wrongful death action by summons and complaint dated January 6, 2022. Issue was joined by Spring Creek by service of an answer dated March 17, 2022, then by amended answer dated April 6, 2022. Defendant, Brookdale University Hospital Medical Center (Brookdale), joined issue by service of an answer dated March 21, 2022. Defendant, Elliot Bondi M.D. (Dr. Bondi), interposed an answer dated March 28, 2022. Nurse Crumity served an answer dated April 6, 2022. Defendant, Andleeb Sherazi, M.D. (Dr. Sherazi), joined issue by service of an answer dated April 7, 2022. Jason McKean, M.D. (Dr. McKean) served an answer dated April 8, 2022. Nurse Ryan served an answer dated May 5, 2022. Nurse Day interposed an answer dated May 9, 20221. On a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211 (a) (7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law[,] a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]; see Leon v. Martinez, 84 NY2d 83, 87-88 [1994]; Hense v. Baxter, 79 AD3d 814, 815 [2d Dept 2010]; Sokol v. Leader, 74 AD3d 1180, 1180-1181 [2d Dept. 2010]). “The complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference” (Hense v. Baxter, 79 AD3d 814, 815 [2d Dept 2010], supra; see Leon v. Martinez, 84 NY2d 83, 87 [1994], supra; Sokol v. Leader, 74 AD3d 1180,1181 [2d Dept 2010], supra; Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703-704 [2d Dept 2008]). In reviewing a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211(a)(7), the court is to accept all facts alleged in the complaint as being true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the alleged facts fit within any cognizable legal theory (see Delbene v. Estes, 52 AD3d 647 [2d Dept. 2008]; see also 511 W.232nd Owners Corp. v. Jennifer Realty Co., 98 NY2D 144 [2002]. Pursuant to CPLR §3026, the complaint is to be liberally construed (see Leon v. Martinez, 84 NY2d at 83). It is not the court’s function to determine whether plaintiff will ultimately be successful in proving the allegations (see Aberbach v. Biomedical Tissue Services, 48 AD3d 716 [2d Dept 2008]; see also EBC I, Inc. v. Goldman Sachs & Co., 5 NY3D 11 [2005]). The pleaded facts, and any submissions in opposition to the motion, are accepted as true and given every favorable inference (see 511 W. 323nd Owners Corp. v. Jennifer Realty Co., 98 NY2d at 151-152; Dana v. Malco Realty, Inc., 51 AD3d 621 [2d Dept 2008]; Gershon v. Goldberg, 30 AD3d 372, 373 [2d Dept 2006]). However, a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint pursuant to CPLR §3211(a)(7) (see CPLR §3211[c]; Sokol v. Leader, 74 AD3d at 1181). “When evidentiary material is considered” on a motion to dismiss a complaint pursuant to CPLR §3211(a)(7), the criterion is whether the plaintiff has a cause of action, not whether they have properly stated one, and unless it has been shown that a material fact as claimed is not a fact at all or that no significant dispute exists, the dismissal should not be granted (Guggenheimer v. Ginzburg, 43 NY2d at 275; see Sokol v. Leader, 74 AD3d at 1182). Gross negligence is defined as conduct that shows a reckless disregard for the rights of others, or appears intentional. (Bennett v. State Farm Fire & Cas. Co., 161 AD3d 926 [2d Dept 2018]). The complaint alleges that Emily was a resident at Spring Creek from July 1, 2019 until September 6, 2020 when she passed away. During that time, she would be transferred to co-Defendant Brookdale and nonparty Mount Sinai Hospital a few times, but the majority of the time she was at Spring Creek. While at Spring Creek, Emily fell three times, and one fall resulted in a fractured femur. Emily also suffered from pressure ulcers. Karen alleges that, inter alia, Spring Creek did not properly assess Emily’s fall risk, and did not properly assess Emily’s risk for pressure ulcers, nor did they properly care for those ulcers when they developed. The within motions do not address the majority of the allegations in the complaint but instead argue that the movants cannot be held liable because they were immune from liability based upon EDTPA. In response to the COVID-19 pandemic, on March 7, 2020, then-Governor Andrew M. Cuomo issued Executive Order 202 which declared a state of emergency in the State of New York. Many other executive orders would be forthcoming which would directly impact the everyday lives of New Yorkers. One such Executive Order, 202.10, was directed at protecting medical personnel during this unprecedented set of circumstances. According to Executive Order 202.10: [A]ll physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional. This content of this Executive Order would soon become law when the New York State Legislature passed, and Governor Cuomo signed EDTPA, then known as Public Health Law §§3800-3802. EDTPA, inter alia, shielded medical personnel and medical facilities from liability where they were “…arranging for or providing health care services pursuant to a COVID-19 emergency rule…” and where “…treatment of the individual is impacted by…the COVID 19 outbreak and in support of the state’s directives…”. There were exceptions written into these new sections. Immunity did not apply where the providers’ actions were “willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm”. An exception to the exception was where the alleged willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm was caused by resource or staffing shortages. The EDTPA has since been repealed, but the consensus among the few existing decisions is that the repeal was not retroactive, and this consensus includes an unanimous decision from the Appellate Division, Fourth Department in Ruth v. Elderwood at Amherst, 209 AD3d 1281 [4th Dept 2022]). In support of both motions, the moving Defendants offer, inter alia, the affidavit of Karissa Rock, R.N. (Nurse Rock), the Infection Control Preventionist and Wound Care Registered Nurse at Spring Creek. According to Nurse Rock, a number of COVID-19 policies as well as COVID-19 guidance impacted the care Emily received. The two main points she makes are that there were staffing shortages, and that putting on and taking off personal protective equipment (PPE) was time-consuming, which left less time to care for patients. Regarding staff shortages, Nurse Rock states that pre-pandemic, on each floor there would be one nurse, one unit manager who was usually a registered nurse (RN), and five Certified Nurse’s Assistants (CNA). In comparison, from March to May, 2020, “there were times” when there would only be two or three staff members on each floor due to staff being out sick or refusing to come in due to fear of contracting COVID-19. Sometimes, an RN would have to cover two floors at one time. Ancillary staff was used to fill in the gaps while overtime, double shifts and cancelled vacation and time off were common. When Emily caught COVID-19, or was suspected of having caught it, she was put onto a designated COVID floor, and all of the precautions put in place also impacted her care. Dealing with the precautions, such as residents’ doors had to be closed at all times, and the fact that COVID floor staff were not supposed to go to non-COVID floors changed the way rounds were done. While these precautions were ongoing, and changing at times, Emily was transferred to and from Brookdale and Mount Sinai for various reasons. To comply with COVID guidance, each time she returned from the hospital she was required to be quarantined for 14 days on the COVID floor, even if she had not tested positive for the virus. According to Nurse Rock, due to all these complications and an ever-evolving situation, her care was greatly impacted by the pandemic. Nurse Rock paints a compelling picture of the obstacles providers and facilities were facing in the harrowing early months of the pandemic. But as relates to this case, Nurse Rock specifically states she is not addressing any care Emily received prior to March 7, 2020, which ultimately undermines these motions. In opposition, Karen offers, inter alia, the expert affidavit Teresa Eberhart, RNBC, M.S. a registered nurse who has been working as a nurse in New York since 1988. Currently, she is a nurse educator at a major hospital system in New York. While Nurse Rock focused on what was happening after March 7, 2020, Nurse Eberhart takes issue with the care Emily received when she was admitted to Spring Creek in July, 2019. Specifically, Nurse Eberhart opines that Emily’s fall risk was improperly evaluated, not only when she was first admitted, but multiple times thereafter, including after she fell the first two times. When Emily was admitted to Spring Creek, she was suffering from, inter alia, end stage renal disease (ESRD), and was on dialysis. The admission notes indicate “high risk for falls”. The notes do not indicate what actions would be taken to protect her from falling. On October 8, 2019, Nurse Crumity performed a Fall Risk Assessment that resulted in a value of 35, which indicated a low risk of falling. In fact, the only time she was deemed high risk was after she had fallen the second time, yet four days later she was evaluated again and was found to be at low risk of falling. Nurse Eberhart opines it was gross negligence to not assess Emily as high risk of falling at all times. The initial notes state she was at high risk of falling yet she was not assessed as high risk until nine months later, after she had fallen twice and had broken her femur. Nurse Eberhart opines it was inconsistent for the notes to indicate Emily was high risk, but then to assess her as low risk. According to Nurse Eberhart, it was clear Emily was high risk based upon her diagnosis of ESRD, needing two assists to get into bed, not being ambulatory without assistance and having gait transferring issues. Further, she suffered from bouts of confusion. Based upon the records, Nurse Eberhart assessed Emily’s fall risk as a 65, which would be high risk. This is relevant to Nurse Eberhart because had Emily’s risk of falling been properly evaluated, then the care she received would have been more geared toward preventing her from falling, and the three falls she suffered may not have happened. Put another way, if proper precautions had been taken to prevent Emily from falling when Emily was admitted to Spring Creek, then even with all of the complications caused by the pandemic that Nurse Rock alluded to, Emily would not have fallen three times. Nurse Eberhart also argues that Spring Creek improperly assessed Emily’s risk for pressure ulcers. When she was admitted through December 24, 2019, Emily was assessed at low risk for pressure ulcers. It was only once pressure ulcers formed did Spring Creek raise the assessment to moderate and high. In Spearance v. Snyder, 73 Misc.3d 769 (NY Sup Ct Onondaga Cty 2021), Defendants had treated the patient both prior to and during the pandemic. The defendants moved to be found immune from liability, pursuant to EDTPA, for the care provided during the pandemic. The court denied the motion, finding that the care provided cannot be looked at in a vacuum, and that the post-pandemic care was a continuance of the prepandemic care. This court adopts that logic in this case. Assuming all facts in the complaint are true, and giving Karen every favorable inference, the court finds the motions to dismiss must be denied. While Emily’s fall-related injuries and pressure ulcers all occurred post pandemic, Karen has effectively alleged that those injuries were directly related to the negligent care, and grossly negligent care Emily received when she was admitted pre-pandemic. Defendants have offered no authority, nor any mechanism, to differentiate from the care a patient received prior to March 7, 2020 to the care the same patient received afterward, and then determine that some care could be found immune. At this early stage of the proceedings, when there has been little if any discovery conducted, and where Defendants have been reluctant to take part in discovery, the court finds the moving defendants have not met their high burden. Id. Accordingly it is hereby ORDERED, that Nurse Crumity, Nurse Day and Spring Creek’s motion to dismiss (Motion Seq. 001) is DENIED in its entirety; and it is further ORDERED, that Nurse Ryan’s motion to dismiss (Motion Seq. 002) is DENIED in its entirety. The foregoing constitutes the Decision and Order of the Court. The court has considered the other arguments raised by the parties and finds them to be without merit. Dated: August 28, 2023
