On March 7, 2020 The New York State Governor Andrew Cuomo declared a state of emergency in response to the ever growing threat posed by the Novel Corona Virus. Against the backdrop of this state of emergency Governor Cuomo has produced over 36 executive orders and counting. One of those orders, Executive Order No. 202.10 is consequential to persons injured by medical negligence related to the COVID-19 pandemic. Governor Cuomo’s ability to suspend or unilaterally change state law stems from New York State Senate Bill S7919, passed in March, and which allows him to undertake these actions so long as doing so assists the state in its disaster response. This Order took effecton March 23, 2020 and continued until May 8, 2020.

On March 23, 2020, Executive Order No. 202.10 granted physicians,physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses immunity from civil liability for any injury or death caused directly as a result of any act or omission by the above medical professional during the course of providing medical services in 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.[1]

The Order also granted medical assistants the ability to provide medical services appropriate to their education, training and experience without oversight from a supervising physician without civil or criminal penalty related to a lack of oversight by a supervising physician.[2]

Although Executive Order 202.10 suspended a large majority of the rights belonging to persons injured by medical negligence related to the COVID-19 pandemic it still allows for the pursuit of personal injury actions where the injury or death was caused as a result of gross negligence.

Under New York law, gross negligence varies, “in kind, not only degree, from claims of ordinary negligence.”[3] An important case decided by New York’s highest court, the Court of Appeals, defined gross negligence as “conduct that evinces reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing.”[4] Such conduct “represents an extreme departure from the standards of ordinary care to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.”[5] In short, New York law defines gross negligence as conduct that shows reckless disregard for the rights of others or “smacks” of intentional wrongdoing.

Further, Executive Order 202.10 is notably silent as to whether this immunity extends to hospitals, urgent care facilities, medical practices and ambulatory services. It therefore appears to be the case that such facilities can still be subject to medical malpractice actions arising from their own acts or omissions relative to coronavirus treatment.

In conclusion, Executive Order 202.10 will almost certainly be challenged in Court, and persons will likely still be able to pursue claimsthrough loopholes in the Order, such as its silence on immunity to hospitalsand institutions and through gross negligence claims. Defense attorneys will ofcourse vigorously remind judges and juries of the dire conditions facing healthcare workers during the pandemic, and that care was rendered by those individuals, not institutions.

[1]New York Executive Order [Cuomo] No. 202.10

[2]Id.

[3]Colnaghi, U.S.A., Inc. v. Jewelers Prot. Servs., Ltd., 611 N.E.2d 282 (N.Y.1993).

[4]Id.

[5]Saltz v. First Frontier, L.P., 782 F. Supp. 2d 61, 75 (S.D.N.Y. 2010), aff’d,485 F. App’x 461 (2d Cir. 2012).

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