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Senior Trial Partner William P. Brady, Partner Gregory J. Radomisli, and Senior Associate Fiachra P. Moody successfully obtained Summary Judgment in a case involving a then 79-year-old widowed female with a history of hypertension, carotid stenosis, and a significant smoking history. She presented to ����ԭ��’s client Hospital’s Emergency Department on 3/31/2020with a 3-day history of right-sided weakness and speech difficulty. She was diagnosed with a CVA and admitted to the Neurological ICU. She had limited improvement in her aphasia and failed her SLP evaluation. As such, a PEG tube was placed for feeding. Once stabilized, she was discharged on 4/8/20 and, according to the Complaint, she died on 9/10/20. Plaintiff alleged that the ����ԭ��’s client’s employed physicians failed to provide necessary medical care and nursing services (i.e. turning and positioning) resulting in serious injuries including pressure ulcers and causing and/or accelerating the decedent’s death.

The Court found that ����ԭ��’s client Hospital and its employed physicians had met their burden of establishing a prima facie case for Summary Judgment through the expert affirmation of ����ԭ��’s expert physician and the Affirmation of a wound care nurse, which established that the Hospital and its employees did not commit any gross negligence in the care and treatment of the decedent. Furthermore, the care and treatment provided to the decedent between March 31, 2020 and April 8, 2020 was impacted by ����ԭ��’s client Hospital’s response to the COVID-19 Outbreak and in response to or support of the New York State’s COVID-19 Directives, thereby benefiting from the immunity provisions bestowed by the EDTPA.

In opposition, plaintiff submitted the affirmation of a physician who opined that ����ԭ��’s client Hospital had failed to provide actual proof that the decedent’s stay was impacted by the COVID-19 pandemic. The Court found these arguments unavailing, pointing to ����ԭ��’s expert nurses’ Affirmation which established that staff were reassigned due to overflow in intensive care units resulting in less time for each staff member to dedicate to each patient’s care, which also impacted the provision of wound care.

Plaintiff also argued that the repeal of the EDTPA, as of April 6, 2021, was retroactive and, therefore, no immunity should be afforded to our client Hospital. In reply, we cited to the numerous Appellate Court level decisions, including Hasan v Terrace Acquisitions II LLC d/b/a Fordham Nursing and Rehabilitation Center a/k/a Kings Terrace Nursing Home (2024 NY Slip Op 00739 [1d Dept. 2024]), which held that the immunity repeal was not retroactive.

The Court found that ����ԭ��’s client Hospital had met the burden of establishing a prima facie case in relation to the immunity from liability conferred by the EDTPA and found that the gross negligence claim asserted by plaintiff, which if established would have precluded EDTPA immunity, was inadequately pled to survive a motion to dismiss.

Accordingly, Summary Judgment was granted. In addition, theCourt granted ����ԭ��’s request for dismissal based on plaintiff’s failure to statea cause of action.

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