Holder v. Jacob

216 N.Y.S.3d 134

Terrell HOLDER, Plaintiff-Respondent,

v.Manju JACOB et al., Defendants-Appellants,Montefiore Health System, Inc., Defendant.

Supreme Court, Appellate Division, First Department, New York.

Entered: July 18, 2024

Certain defendants appeal from an order of the Supreme Court, Bronx County (Michael A. Frishman, J.), entered on or about July 13, 2023, which, to the extent appealed from as limited by the briefs, denied their motion to dismiss the complaint.

Mauro Lilling Naparty LLP, Woodbury (Caryn L. Lilling and Seth M. Weinberg of counsel), for appellants.

Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York (Richard M. Steigman of counsel), for respondent.

Anil C. Singh, J.P., David Friedman, Julio Rodriguez III, John R. Higgitt, Llinét M. Rosado, JJ.

HIGGITT, J.

This appeal gives us occasion to revisit the evidentiary showing a defendant must make to establish entitlement to dismissal of a complaint under CPLR 3211(a)(7), when the motion is premised on a complete affirmative defense (i.e. immunity), as opposed to deficiencies or infirmities in the pleading itself. Here, in response to plaintiff’s complaint alleging medical malpractice occurring during the earliest days of the coronavirus pandemic, a hospital, two of its doctors, and one of its nurses seek the protections of former Public Health Law § 3082, a statute that was enacted to immunize, with limited exception, medical providers from civil liability for health care rendered during that fraught time. We find that Supreme Court correctly denied the motion.

I.

In March 2020 alone, New York State recorded its first 83,000 cases of the deadly coronavirus disease (see Matter of People v. Quality King Distribs., Inc., 209 A.D.3d 62, 64, 173 N.Y.S.3d 221 [1st Dept. 2022]). The Governor declared a state of emergency on March 7, 2020, and thereafter issued numerous Executive Orders modifying or suspending various provisions of law pursuant to his authority under Executive Law § 29–a, to facilitate the State’s and our collective responses to the disaster. Among them was Executive Order 202.10, issued March 23, 2020, which temporarily modified or suspended, through April 22, 2020, several provisions of the Education Law

"to the extent necessary to provide that all 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" (Executive Order [A. Cuomo] No. 202.10 [9 NYCRR 8.202.10] [emphasis added]).

The affected statutes – Education Law §§ 6527(2), 6545 and 6909(1) – already provided for immunity to, respectively, physicians, physicians assistants, and licensed registered professional and practical nurses, for "first aid or emergency treatment at the scene of an accident or other emergency, outside a hospital, doctor’s office or any other place having proper and necessary medical equipment," except in the case of gross negligence.

Thereafter, "to address the burdens of health care providers who had been stretched unbearably thinly" by the pandemic (Townsend v. Penus, 2021 N.Y. Slip Op. 32375[U], *4, 2021 WL 5498045 [Sup. Ct., Bronx County 2021]), the legislature enacted the Emergency or Disaster Treatment Protection Act (EDTPA) (former Publie Health Law art 30–D, §§ 3080–3082, as added by L 2020, ch 56, § 1, part GGG, as amended by L 2020, ch 134, §§ 1–2, and as repealed by L 2021, ch 96, § 1). Effective April 3, 2020, and "deemed to have been in full force and effect on or after March 7, 2020" (L 2020, ch 56, § 1, part GGG, § 2), the Act, among other things, afforded immunity from civil and criminal liability to health care facilities and health care professionals:

"A public health emergency that occurs on a statewide basis requires an enormous response from state and federal and local governments working in concert with private and public health care providers in the community. The furnishing of treatment of patients during such a public health emergency is a matter of vital state concern affecting the public health, safety and welfare of all citizens. It is the purpose of this article 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" (former Public Health Law § 3080).

The version of former Public Health Law § 3082 in effect at the relevant time stated:

"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,¹ 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" (emphasis added).

Public Health Law § 3082(1) thus set forth the three-part showing a medical provider must make to demonstrate entitlement to immunity under the statute’s protections (see Mera v. New York City Health & Hosps. Corp., 220 A.D.3d 668, 669, 197 N.Y.S.3d 278 [2d Dept. 2023]; Ruth v. Elderwood at Amherst, 209 A.D.3d 1281, 1282, 175 N.Y.S.3d 811 [4th Dept. 2022]; Figueroa v. Nayak, 2024 N.Y. Slip Op. 30871[U], *5, 2024 WL 1076131 [Sup. Ct., N.Y. County 2024]).

II.

Plaintiff was admitted to Montefiore Medical Center at approximately 4:00 a.m. on April 7, 2020, after appearing at the emergency department with complaints relating to ulcerative colitis. At approximately 5:30 a.m., he was discovered on the floor of his room by a nurse, defendant Manju Jacob, who noted that he had fallen while attempting to reach the bathroom, and was assisted back to bed (this encounter was entered into plaintiff’s medical chart at approximately 7:15 a.m.). Within minutes after defendant Jacob’s discovery of plaintiff, defendant Joseph Gross examined him, noting, as is relevant here, that plaintiff complained of neck pain and a right-sided headache with associated sensitivity to light and sound, as well as abdominal pain. Plaintiff had initially reported a history of migraines but denied same upon repeat questioning. Defendant Edward Bahou examined plaintiff approximately a half hour later, largely concurring with defendant Gross’s findings. Plaintiff apparently made no mention of his fall to defendant Gross or Bahou.

At approximately 11:12 a.m., plaintiff was noted to be "screaming" in pain. The physician noted, without noting the source of this information, that plaintiff had called his family at approximately 6:00 a.m., reporting to them that he hit the back of his head when he fell. In light of this history, the physician ordered a CT scan, which revealed an intraparenchymal hemorrhage requiring surgical intervention and an extended hospitalization.²

Plaintiff’s complaint alleges that defendants rendered medical care negligently and failed to administer proper treatment to plaintiff, thus deviating from approved, standard, and accepted medical care, by failing, among other things, to timely diagnose and treat plaintiff’s intracranial bleed and related conditions, which led to severe and permanent physical injuries, including hemiplegia.

III.

Defendants moved, pursuant to CPLR 3211(a)(7), for an order dismissing the complaint. They did not contend that the complaint’s allegations failed to adequately assert a cause of action for medical malpractice; rather, their motion rested on the ground that they were immune from liability under Public Health Law Article 30–D and Executive Order 202.10. In support of their motion, they submitted nearly 7,000 pages of plaintiff’s medical records; the affidavits of defendants Jacob, Gross, and Bahou; and the affidavit of Montefiore’s vice president and chief quality officer, Dr. Peter Shamamian.

Defendants described the impacts of the newly identified coronavirus on their practices as medical professionals, including dramatically increased patient loads; time spent changing protective gear for each patient encounter, which reduced the time they could spend with patients; shortages of medical supplies; staffing shortages; and redesignation of patient wards.

Dr. Shamamian described the immediate and massive impact the...