The following e-filed documents, listed by NYSCEF document number (Motion 003) 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 161, 164, 167, 183 were read on this motion for SUMMARY JUDGMENT. The following e-filed documents, listed by NYSCEF document number (Motion 004) 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 162, 165, 168, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 185, 186 were read on this motion for SUMMARY JUDGMENT. The following e-filed documents, listed by NYSCEF document number (Motion 005) 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 163, 166, 169, 184 were read on this motion to DISMISS. DECISION + ORDER ON MOTION Upon the forgoing documents, and for the reasons stated hereinbelow, defendants’ motions are granted. In this action plaintiff, Jerson Felix Figueroa, alleges that defendant Avraham Y. Henoch, M.D. (“Dr. Henoch”) was careless and negligent in rendering medical treatment on March 23, 2020, and April 21, 2020. Background There are no genuine disputes of the material facts. NYSCEF Doc. Nos. 86, 104, 133. On March 23, 2020, at the height of the COVID-19 pandemic in New York, plaintiff presented to the offices of Dr. Henoch for, inter alia, a follow up to a February 21, 2020 emergency room visit arising from what presented as “severe lumbago with sciatica.” NYSCEF Doc. No. 110 at 5. Dr. Henoch referred plaintiff for an x-ray and an MRI of his lumbar spine. Id. at 7. He also referred plaintiff to physical therapy and ordered nerve studies and blood tests. Id. at 6-8. Plaintiff never followed up on the ordered blood work and, according to later medical records, was “was unable to get a PT appointment d/t COVID but tried to do exercises his dad looked up without improvement.” NYSCEF Doc. Nos. 118 at 108, 113 at 5. On March 25, 2020, plaintiff went for x-rays and MRI at Lenox Hill Radiology, but the MRI had apparently not been scheduled. NYSCEF Doc. No. 118 at 116. According to a May 4, 2020 medical chart, plaintiff’s “PMD tried to schedule an MRI but has been unable to get it b/c of COVID.” NYSCEF Doc. No. 113 at 1. Plaintiff called Dr. Henoch’s office and a new MRI appointment was scheduled. NYSCEF Doc. No. 118 at 120. On April 3, 2020, and then on April 20, 2020, plaintiff returned to Lenox Hill Radiology for an MRI; however both times he “was unable to tolerate the examination” and after the second attempt Lenox Hill Radiology informed Dr. Henoch’s office that instead a “noncontrast CT of the lumbar spine is recommended for further evaluation. If the CT is nondiagnostic, MRI of the lumber spine may be attempted on an open MRI scanner if the patient is able to tolerate.” NYSCEF Doc. No. 115. On April 14, 2020, between MRI attempts, plaintiff went to Harlem Hospital with leg pain and sciatica and was told to follow up with his primary physician and scheduled MRI. NYSCEF Doc. No. 117 at 89-90. In his 50-h hearing, plaintiff testified that he was told he could not be admitted to Harlem Hospital because of COVID as “they didn’t have any room to really admit me to.” Id. Neither plaintiff nor Harlem Hospital ever informed Dr. Henoch of plaintiff’s visit. NYSCEF Doc. No. 121 at 124. On April 21, 2020, after the second failed MRI attempt, plaintiff had a tele-visit with Dr. Henoch and was referred for an open MRI on May 1, 2020. NYSCEF Doc. No. 121. Before the Open MRI could take place, however, plaintiff’s insurance company denied coverage. NYSCEF Doc. No. 118 at 137-8. Plaintiff did not enquire about other payment options and canceled the appointment. Id. On April 30, 2020, Dr. Henoch called plaintiff to discuss the denied Open MRI and referred him to an emergency room to obtain an MRI. NYSCEF Doc. No. 110. On May 4, 2020, plaintiff went to the Montifore Medical Center emergency room where he was once again unable to lie flat for an MRI. NYSCEF Doc. No. 113. Plaintiff was then admitted for an MRI under sedation, which took place May 5, 2020. Id. The MRI revealed a mass on plaintiff’s lumbar spine at L3-4 and on May 6, 2020, a laminectomy was performed and the mass was removed. Id. The mass was later identified as a Diffuse Large B-Cell Lymphoma. Id. On May 20, 2020, plaintiff began aggressive chemotherapy. Id. Procedural History On December 30, 2020, plaintiff commenced this action against defendants Mansi Nayak, M.D., Margaret Dolohanty, P.A., Dr. Henoch, Lincoln Adeyemi P.A., Steve Ko, M.D., Mount Sinai Morningside, Avraham Y. Henoch M.D.P.C., Harlem Hospital Center, and New York City Health and Hospitals Corporation. NYSCEF Doc. No. 1. On October 24, 2023, defendants Mansi Nayak, M.D., Margaret Dolohanty, P.A. and St. Luke’s-Roosevelt Hospital Center s/h/a Mount Sinai Morningside, moved, pursuant to CPLR 3212, for summary judgment dismissing the action against them (Motion Sequence #3). NYSCEF Doc. No. 85. On October 31, 2023, defendants Lincoln Adeyemi, P.A., Steve Ko, M.D., New York City Health and Hospitals Corporation Harlem Hospital Center s/h/a Harlem Hospital Center and New York City Health and Hospitals Corporation, moved, pursuant to CPLR 3211(a)(7) and 3212, to dismiss the action against them (Motion Sequence #5). NYSCEF Doc. No. 131. On March 1, 2024, plaintiff’s attorney filed an affirmation of no opposition to Motion Sequences #3 and #5. NYSCEF Doc. Nos. 183. On October 26, 2023, defendants Dr. Henoch and Avraham Y. Henoch, M.D.P.C., moved, pursuant to CPLR 3212, for summary judgment and, pursuant to CPLR 3211(a)(7), to dismiss the complaint against them under New York Public Health Law former §§3080-3082 (“Emergency or Disaster Treatment Protection Act” or “EDTPA”) (Motion Sequence #4). NYSCEF Doc. No. 102. Movants argue that: it is impossible to establish proximate causation between Dr. Henoch and the alleged damages asserted in plaintiff’s Bills of Particulars; Dr. Henoch is immune from liability pursuant to the EDTPA which was in effect at the time of the alleged malpractice; and, therefore, based on vicarious liability, Dr. Henoch’s practice is also entitled to summary judgment in its favor. NYSCEF Doc. No. 103. In opposition, plaintiff argues against dismissal because, inter alia: issues of fact exist because plaintiff’s expert identified three alleged departures from good and accepted medical practice (when Dr. Henoch failed to order a CT scan on April 21 and 30, 2020; when Dr. Henoch failed to order an MRI with sedation on an outpatient basis; and when Dr. Henoch failed to instruct plaintiff to present to an emergency room immediately after being denied an Open MRI); that those departures were a proximate cause of plaintiff’s injury; and because defendants have not “conclusively established” that COVID-19 impacted plaintiff’s treatment so as to warrant EDTPA immunity. In support of their EDTPA argument, plaintiff’s rely on Mandell v. Rahaman, 2023 NY Slip Op 34003(U) (Sup Ct, New York County, Nov. 8, 2023), which denied a motion to amend defendant’s answers to include COVID-19 defenses because the coronavirus was “wholly unrelated to the allegations in the complaint and verified bills of particulars.” In reply defendants argue, inter alia, that: plaintiff’s allegations in opposition are a new and materially different theory which may not be considered for the first time in opposition; proximate cause cannot attach to Dr. Henoch’s ordering of a diagnostic study that was denied by insurance and canceled by plaintiff; and, in any event, plaintiff fails to show that Dr. Henoch is not immune from liability pursuant to the EDTPA. Discussion In determining whether a complaint is sufficient to withstand a motion to dismiss 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). On March 7, 2020, at the start of the COVID-19 global pandemic, then-Governor Andrew Cuomo signed a series executive orders declaring a disaster emergency in New York State. See 9 NYCRR 8.202. On March 21, 2020, the Governor signed an executive order giving health care workers immunity from civil liability, except for gross negligence 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.” 9 NYCRR 8.202.10. On April 3, 2020, the legislature enacted the EDTPA, effective March 7, 2020, “to promote 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.” See L 2020, ch 56, part GGG, §1. Codified in the PHL Article 30-D at §§3080-3082 When it was enacted, former PHL §3082 provided that: 1. Notwithstanding any law to the contrary…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 (emphasis added). All three prongs of former PHL §3082(1) must be met to secure immunity from liability, and no immunity attaches if the harm was caused by acts or omissions resulting from willful or intentional criminal misconduct, gross negligence, reckless misconduct, or the intentional infliction of harm, except 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.” Id. On August 3, 2020, the Legislature amended the former PHL §3082 to, inter alia, remove immunity from those “arranging” for medical care. L2020, ch 134, §2. On April 6, 2021, the EDTPA was repealed, effective immediately. L2021, ch 96, §§1-2. Although the EDTPA was repealed, Courts have found it was not repealed retroactively. Hasan v. Terrace Acquisitions II, LLC, 203 NYS3d 325, 326 (1st Dept 2024) (“Plaintiff argues that the repeal of the EDTPA was retroactive, and therefore, that defendant is not shielded from liability for actions that occurred while the EDTPA was still in effect. We disagree.”); Ruth v. Elderwood at Amherst, 209 AD3d 1281, 1291 (4th Dept 2022) (“we conclude that the repeal of EDTPA does not apply retroactively”). Here, defendant’s interactions with plaintiff took place at the height of the COVID-19 pandemic in New York State and are clearly covered by former PHL §3082. Plaintiff’s reliance on Mandell v. Rahaman is misplaced, as that case involved allegations of negligence in two specific surgeries (one which predated the pandemic) that were “wholly unrelated” to COVID-19. The interactions at bar occurred squarely within the time contemplated by former PHL §3082 and any alleged omissions in the health care services provided were affected by the pandemic. As then written, former PHL §3082 expressly grants immunity when an act or omission in arraigning or providing care to the claimant is affected, in some way, by a medical provider’s response to the pandemic. Despite plaintiff’s protestation that defendants have “failed to produce direct evidence that any staff shortage, supply shortage or physician unavailability affected any act and/or omission in the medical and nursing care and treatment at issue,” defendants’ need not make such “conclusive” showings under former PHL §3082 as it was initially enacted. See Matos v. Chiong, 2021 NY Slip Op 32047[U], 1 (Sup Ct, Bronx County 2021) (“Notably, the statute does not qualify how treatment must be affected — whether positively, negatively, or otherwise — it merely requires that treatment be ‘impacted.’”) Here, defendants have shown that the care defendants rendered and arranged for plaintiff was impacted by the pandemic. Therefore, while it is unfortunate that it took plaintiff so long to obtain the diagnosis and the care he needed, and as there is no allegation of bad faith or gross negligence, the Court is constrained by former PHL §3082 to dismiss the complaint and, thus, need not reach plaintiff’s remaining arguments. Conclusion The motions are hereby granted and the Clerk is directed to dismiss the action in its entirety. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: March 11, 2024
