The outbreak of the COVID-19 pandemic in the United States drastically changed our lives. College students were sent home, clothing stores closed their doors, and weddings were canceled. One industry that was impacted particularly hard was the healthcare industry. The healthcare industry was faced with the formidable challenge of battling a novel virus it knew little about. For an industry which traditionally follows evidence-based medicine for patient management, the absence of any evidence-based approaches to this specific virus presented a daunting task.
On January 31, 2020, the United States declared COVID-19 as a public health emergency [1]. On March 1, 2020, New York confirmed its first case of COVID-19 in the state [2]. Not too long after the first New York case, nursing homes became the center of COVID-19 outbreaks. This was not surprising, given that nursing home residents live in shared close spaces and many of them are elderly and immunocompromised, making them vulnerable to contracting the virus and to serious complications from the virus. Advanced age and underlying medical conditions came to be known as primary risk factors for poor outcomes.
It is admittedly hard to forget the news story with video footage of two large refrigerator trucks parked outside a New York City nursing home storing the bodies of patients who had died from COVID-19 [3]. With so many patients dying from the virus and back-ups at funeral homes, the nursing home had to resort to storing those bodies in trucks. The nursing home lost 98 patients to COVID-19 by May 1, 2020, which represented a startling 15% of its total patient population [3].
About 20 states enacted legislation granting some level of immunity to protect healthcare professionals and facilities who worked amidst the peak of the COVID-19 pandemic from malpractice lawsuits [4]. New York was the first state to offer COVID-19 specific immunity to the healthcare industry. On April 6, 2020, New York’s then Governor Cuomo passed emergency legislation titled the New York Emergency or Disaster Treatment Protection Act (“EDTPA”). This law provided civil and criminal liability immunity to all health care professionals and facilities for any injuries or death alleged to have been sustained in the course of providing health care services during the COVID-19 outbreak [5]. The stated purpose was sound: to promote the public health and safety of all citizens by protecting health care professionals and facilities from liability that may result from treatment of individuals under conditions created by the COVID-19 emergency [6].
However, on April 6, 2021, New York entirely repealed the immunity [7]. With New York as the first state to repeal the immunity, this raises the question of whether granting immunity was ethical in the first place. After examining the challenges that nursing homes in New York specifically faced during the COVID-19 pandemic, granting them immunity was the ethical and reasonable way to protect an industry that struggled with devastation and death for reasons outside their control.
When COVID-19 was first introduced into the United States, there was no vaccine and there was no established effective treatment. Further, nursing homes, along with all healthcare facilities, were short on testing kits and personal protective equipment (“PPE”). At the start of the COVID-19 pandemic, the CDC only distributed limited numbers of testing kits to keep testing centralized, which in hindsight was a problematic plan given the explosion in cases [8]. Moreover, the New York State Department of Health fully expected and warned all healthcare facilities that there would be a shortage of PPE [9]. This expected shortage was probably the reason behind the CDC head-scratching guideline that facemasks should only be worn by sick people [10]. As we came to learn, this guideline sharply conflicted with all subsequent guidelines recommending or even mandating masks for everyone, sick or healthy, to limit transmission.
Perhaps the most devastating blow to the New York nursing homes was Governor Cuomo’s March 25, 2020 Advisory, which required all nursing homes to admit hospital patients recovering from COVID-19 on an “expedited basis” [11]. So not only did nursing homes have to deal with a novel virus without established treatment, but they were put into the impossible position of having to accept COVID-19 recovering patients into a patient population already compromised and vulnerable due to advanced age and chronic medical conditions. According to the Associated Press, an independent global news organization, the NYSDOH reported a total of 6,327 recovering COVID-19 patients were admitted from hospitals into New York nursing homes in the two months following this Advisory [12].
The Journal of American Medical Directors Association conducted a study on the challenges that nursing homes faced from May 11, 2020 to June 4, 2020 which was at the height of the COVID-19 pandemic and during the period of New York State’s immunity. The study involved 152 nursing homes across 32 states and went through the universal problems experienced by nursing homes across the nation. The study revealed challenges of constraints on testing due to inadequate testing; reuse of PPE due to PPE shortages; burdens in tracking the inconsistent guidelines from regulator agencies; staff shortages due to staff illness; concern over caring for very ill and compromised patients; and concern over their health [13]. One nursing home CNA revealed “[we are] reusing…gowns and going in and out of rooms with the same gown. The face masks [are] being reused for a week.” [13] One nursing home administrator expressed frustration at the “constant changing regulations” and one nursing home physician characterized the guidance as “spotty and unrealistic.” [13]
These were the challenges that nursing home workers faced each and every day, and this was the reason why New Yorkers applauded healthcare workers daily at shift changes [14]. The repeal suggests that we have forgotten the incredible sacrifices nursing home workers and all other healthcare workers made in caring for COVID-19 under the most trying of times. Those in favor of the repeal argued that healthcare administrators need to be held accountable for COVID-19 deaths, but this argument ignores that the law still allowed lawsuits of gross negligence [7]. It also ignores the fact that the immunity was given for a short period of time, from March 7, 2020 to August 4, 2020, which was the height of the COVID-19 outbreak and the immunity period ended once the country was able to better manage COVID-19. Michael Balboni, executive director of Greater New York Health Care Facilities, strongly opposed the repeal: “To do this now seems to be piling on an industry that has already had so much death and devastation. And I don’t really see how this is going to help anybody. . . This is an opportunity to rebuild better. And we’re not doing that.” [7] The repeal of the immunity will open the floodgates to unjustified litigation against nursing homes as well as other healthcare professionals to hold them accountable for things that were beyond their control. Shortages of resources, beds, rooms, testing, and staff were endemic to the entire healthcare industry and occurred as results of the enormous burdens created by COVID-19.
The height of the COVID-19 pandemic brought serious challenges to nursing homes and nursing home workers confronted significant dilemmas daily. New York’s legal immunity law was an ethical and reasonable choice to protect the nursing home industry managing vulnerable patients in an unprecedented global health problem. New York’s legal immunity sufficiently protected a patient’s rights to proper care because the immunity was only effective for a limited time and it always allowed for lawsuits of gross negligence. The repeal of legal immunity unfairly exposes nursing homes to lawsuits for resource shortages and other treatment difficulties that arose in the entire healthcare industry because of the COVID-19 pandemic and were beyond their control.
References
David Sencer, “CDC Museum COVID 19 Timeline”, Retrieved from https://www.cdc.gov/museum/timeline/covid19.html
Manhattan Woman, 39, Is NYC’s First COVID-19 Case; Husband’s Test Results are Pending”, NBC, March 1, 2020. Retrieved from https://www.nbcnewyork.com/news/coronavirus/person-in-nyc-tests-positive-for-covid-19-officials/2308155/
Jim Mustian, “NY Nursing Home Reports 98 Deaths Linked to Coronavirus”, NBC, May 1, 2020. Retrieved from https://www.nbcnewyork.com/news/local/ny-nursing-home-reports-98-deaths-linked-coronavirus/2399097/
Recently enacted medical liability immunity statutes related to COVID-19”, American Medical Association, November 20, 2020. Retrieved from https://www.ama-assn.org/system/files/2020-12/medical-liability-immunity-statutes-chart.pdf.
Emergency or Disaster Treatment Protection Act”, New York Public Health Law, Article 30 D, 3082, (2020).
Emergency or Disaster Treatment Protection Act”, New York Public Health Law, Article 30 D, 3080, (2020).
Marlene Lenthang, “Cuomo repeals nursing home and hospital COVID-19 liability protections”, ABC, April 7, 2021. Retrieved from https://abcnews.go.com/US/cuomo-repeals-nursing-home-hospital-covid-19-lia bility/story?id=76921804
CDC, “Distribution of CDC Diagnostic Test Kits Will Expand Laboratory Capacity to Detect 2019-nCoV”, [Press Release], February 6, 2020. Retrieved from https://www.cdc.gov/media/releases/2020/p0206-coronavirus-diagnostic-test-kits.html
New York State Department of Health, “PPE Shortage” [Letter], February 6, 2020. Retrieved from https://coronavirus.health.ny.gov/system/files/documents/2020/03/2020-02-06_ppe_shortage_dal.pdf
CDC, “Prevent Getting Sick”, March 2019. Retrieved from https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html
New York State Department of Health, “Hospital Discharges and Admissions to Nursing Homes” [Advisory], March 25, 2020. Retrieved from https://dmna.ny.gov/covid19/docs/all/DOH_COVID19%20_NHAdmissionsReadmissions_%20032520.pdf
Siladitya Ray, “New York Underreported COVID-19 Patients Sent from Hospitals to Nursing Homes By 40%”, Forbes, February 12, 2021.
Elizabeth White et. al, “Front-line Nursing Home Staff Experiences During the COVID-19 Pandemic”, J. Am Med Dir Assoc., January 2021.
Every Night, New York City Salutes Its Health Care Workers”, NPR, April 10, 2020. Retrieved from https://www.npr.org/2020/04/10/832131816/every-night-new-york-city-salutes-its-health-care-workers