Adler v. Troy

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2023 NY Slip Op 33804(U)

SETH ADLER, AS ADMINISTRATOR OF THE ESTATE OF THE ESTATE OF MICHELE ADLER, DECEASED, and SETH ADLER, Individually, v. KEVIN TROY, M.D., CAITLIN BURKE, N.P., ELIZABETH YOO, M.D., MOUNT SINAI MEDICAL CENTER, SEAN LIU, M.D. and LUIS R. DEPALO, M.D., Defendants.

Index No. 805376/2021, Motion Seq. No. 003

Supreme Court, New York County

October 18, 2023

Unpublished Opinion

MOTION DATE 08/19/2022

DECISION + ORDER ON MOTION

HON KATHY J. KING JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 003) 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50 51, 52, 53, 54, 55, 56, 57, 58, 60, 61, 64, 65, 66 were read on this motion to/for DISMISS.

Upon the foregoing papers, defendants KEVIN TROY, M.D., CAITLIN BURKE, NP, ELIZABETH YOO, M.D., SEAN LIU, M.D., LOUIS R DEPALO, M.D., and MOUNT SINAI MEDICAL CENTER ("defendants") move for an order pursuant to CPLR 3211(a)(2), dismissing this action for lack of subject matter jurisdiction; or, in the alternative, pursuant to CPLR 3211(a)(7), dismissing this action for failure to state a cause of action pursuant to the federal Public Readiness and Emergency Preparedness Act ("PREP Act"), 42 U.S.C §§ 247d-6d, 247d-6e, and the New York Emergency or Disaster Treatment Protection Act ("EDTPA"), Public Health Law Article 30-D, P.H.L.§§ 3080-3082.

Plaintiffs oppose the motion.

PLAINTIFF'S COMPLAINT AND THE INSTANT MOTION TO DISMSS

Plaintiffs' amended complaint sounds in medical malpractice and seeks damages for personal injuries and for the wrongful death of plaintiffs decedent ("decedent"), while she was under a course of continuous treatment by defendants commencing on or about March 10, 2020. Plaintiffs decedent passed away on April 21, 2020. The complaint alleges that each of the individual defendants was duly licensed to practice medicine in New York, and that defendant Mt. Sinai owned and operated a "fully-accredited" hospital, and was vicariously liable for all employees therein.

Plaintiffs decedent was a 54-year-old woman with a history of CVID (Common Variable Immunodeficiency), a primary immune deficiency disease characterized by low levels of protective antibodies and an increased risk of infection. She also had immune thrombocytopenic purpura, a rare blood disorder, for which she presented to defendants on March 10, 2020. The complaint alleges that defendants "had a duty to protect immunocompromised patients and keep contagious and/or compromised patients segregated from other patients" and "were required to establish an effective infection control program for the prevention, control, investigation and reporting of all communicable disease and increased incidence of infections as per NYCRR §405.11." Further, the complaint alleges that based on the medical history of plaintiffs decedent, defendants were reckless upon admitting plaintiffs decedent to Mount Sinai on or about March 10, 2020, and said recklessness compromised her already compromised lung function, causing her to contract COVID-19, and die within weeks after being on a ventilator.

Defendants contend that this action should be dismissed under the PREP Act because it provides broad immunity "from suit" with respect to any claim "relat[ed] to" the manner in which a defendant uses or administers "covered countermeasures"-including PPE, CO VID-19 tests, medical devices used in the treatment of COVID-19 patients, and medical devices used for diagnosing COVID-19-in response to COVID-19. Immunity extends to resource allocation decisions and decisions pertaining to the operation and management of a facility where countermeasures are used or administered in response to COVID-19, such as a hospital.

In opposition, plaintiff asserts that defendants are not entitled to PREP Act immunity because the amended complaint does not allege that decedent's illness or death was caused by, or related to, "the administration to or the use by an individual of a covered countermeasure" (42 USC § 247d-6d [a] [1]). Rather, plaintiffs contend that the complaint arises from defendants' failure to implement an effective infection control program, and segregate immunocompromised patients, such as the decedent, from contagious patients with Covid-19. Plaintiff asserts that this failure to act, which is alleged to have caused the decedent's death, does not fall within the scope of the PREP Act.

Defendants contend that the action should also be dismissed under the EDTPA since it provides immunized health care facilities and health care professionals in New York from liability relating to the treatment of patients during the state of emergency declared for CO VID-19.

DISCUSSION

It is well settled that "[o]n a motion to dismiss pursuant to CPLR § 3211, the pleading is to be afforded a liberal construction in the light most favorable to the plaintiff (see Leon v Martinez, 84 N.Y.2d 83 (1994). However "conclusory allegations-claims consisting of bare legal conclusions with no factual specificity-are insufficient to survive a motion to dismiss."

Under CPLR § 3211(a)(2) a party to may move to dismiss a cause of action where "the court has no jurisdiction of the subject matter of the cause of action." In this regard, "[w]here a cause of action is preempted by federal law, a party may move, pursuant to CPLR § 3211(a) (2), to dismiss the cause of action on the ground that the court lacks subject matter jurisdiction" (Astro Ready Mix, LLC v MTA Long Is. R.R., 217 A.D.3d 816, 817 [2d Dept 2023]). "[ I]n assessing motions pursuant to CPLR § 3211(a)(7), any deficiencies in the complaint may be amplified by supplemental pleadings and other evidence, as the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Nomura Home Equity Loan, Inc. v Nomura Credit &Capital, Inc., 30 N.Y.3d 572, 601 [2017] [internal quotation marks and citations omitted]).

The Prep Act

Congress enacted the PREP Act in 2005, in response to the 2003 SARS epidemic, in order "[t]o encourage the expeditious development of medical countermeasures during a public health emergency by granting the Secretary of the Department of Health and Human Services ("HHS Secretary") the "authority to publish a declaration that (1) announces a disease or health condition is a public emergency and (2) defines appropriate covered countermeasures" (42 USC § 247d-6d [b][I]). The PREP Act authorizes the HHS Secretary to act swiftly to provide civil immunity to individuals and companies participating in the country's response to a public health emergency (42 U.S.C. § 247d-6d [b][1]).

Once implemented, the PREP Act provides the following limited immunity:

...[A] covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a Covered Countermeasure if a declaration [is issued by the HHS Secretary] with respect to such countermeasure. (42 USC § 247d-6d [a] [1], [a][2][B] [emphasis added]).

The immunity applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure. Once the HHS Secretary issues a declaration invoking the PREP Act, no court shall have subject matter jurisdiction to review that determination (42 USC § 247d-6d [b][7]).

The only exception to the PREP Act's grant of immunity is "for death or serious physical injury proximately caused by willful misconduct" (42 USC § 247d-6d[d] [1]) defined as an act or omission that is taken (i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit (42 USC § 247d-6d [c] [1] [A]).

In response to COVID-19, the HHS Secretary issued a Declaration invoking the PREP Act (see Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed.Reg. 15198 [Mar. 17, 2020]["Declaration"]). This Declaration broadly defines "covered countermeasures" to include virtually any FDA approved or authorized "drug" or "device" used to treat or diagnose COVID-19 or mitigate its spread. It also includes a wide array of products, such as various forms of PPE, hand sanitizers, COVID-19 tests, and any medical device that would be used for treating a COVID-19 patient, such as ventilators, or for determining whether an individual is symptomatic, such as thermometers and pulse oximeters.

The Declaration provides immunity for "recommended activities," which include the "use" or "administration" of "covered countermeasures" (85 Fed.Reg. at 15201). "Use" is not defined under the PREP Act or the Declaration. However, the Declaration further broadly defines "administration" to include not only the physical provision of covered countermeasures to recipients, but also to all related activities and decisions as well as management and operation of facilities where countermeasures are being used and distributed to individuals. This includes decisions regarding the allocation of countermeasure resources across multiple people.

The Declaration, as amended, also provides that covered countermeasures include any products used to treat or diagnose COVID-19, or used to mitigate the harms that COVID-19 might otherwise cause, so long as that product is an antiviral, drug, biologic, respiratory protective device, or other device.

It is undisputed that defendants are a covered person within the meaning of the PREP Act. The issue for the Court to decide is whether plaintiffs claim "aris[es] out of," "relate|s]...