Background
On April 2, 2020 — during the height of the COVID-19 pandemic — Abraham Back presented to the emergency department of Massena Hospital complaining of symptoms consistent with a gallbladder attack. An ultrasound confirmed gallstones and mild dilation of the common bile duct. Defendant Dr. Dalkeith Facey, a general surgeon, diagnosed acute cholecystitis and scheduled Back for a laparoscopic cholecystectomy (gallbladder removal). The next day, Facey performed the procedure, recording no complications in his operative report. However, Back subsequently developed jaundice, and further imaging at a different facility revealed that surgical clips placed during the procedure had obstructed his common bile duct — requiring an open bile duct reconstruction surgery.
Back and his spouse filed a medical malpractice action alleging negligent performance of the laparoscopic cholecystectomy, failure to identify proper biliary anatomy before clipping, negligent placement of surgical clips, and failure to diagnose the postoperative bile duct injury. Defendants moved for summary judgment on the ground that they were immune from liability under the Emergency or Disaster Treatment Protection Act (EDTPA), codified at Public Health Law former §§ 3080–3082. The EDTPA, enacted in March 2020 at the onset of the pandemic, granted immunity from liability to health care providers for injuries arising from acts or omissions during the COVID-19 state of emergency — provided that the injury was “directly related to the treatment of COVID-19” or arose from “decisions or activities in response to or as a result of the COVID-19 outbreak.” Defendants argued that their inability to use the hospital’s robotic surgery system — which had been converted into additional surge beds under the State’s pandemic directives — constituted an activity in response to COVID-19 that impacted Back’s care, triggering EDTPA immunity. Supreme Court, St. Lawrence County, denied summary judgment, finding that defendants had not met their moving burden. Defendants appealed.
The Court’s Holding
The Appellate Division, Third Department, affirmed. The court held that defendants failed to establish prima facie that the care and treatment of Back had been “impacted by decisions or activities in response to or as a result of the COVID-19 outbreak” — the statutory trigger for EDTPA immunity. The court rejected the premise of defendants’ argument: while the hospital had unquestionably made extensive operational changes in response to the pandemic, those changes caused delays in care due to understaffing and facility limitations — and the gravamen of plaintiffs’ claims was not a delay in treatment but a surgical error and postoperative misdiagnosis.
As to the specific COVID-related impact claimed — the unavailability of the robotic surgery system — the court found that defendants had not demonstrated how this impacted Back’s gallbladder removal. Facey himself testified that a laparoscopic surgery was appropriate for Back’s procedure, that he was well-trained in laparoscopic gallbladder removal, that he had performed the procedure “quite a lot,” and that his method of performing Back’s surgery “did not change in any way as a result of COVID.” The EDTPA confers immunity only for care truly impacted by the COVID-19 response; it cannot be invoked as a shield for a standard surgical error in a routine procedure that the surgeon would have performed the same way with or without the pandemic. Because defendants failed to meet their moving burden, the court did not reach the question of whether any EDTPA exception would apply.
Key Takeaways
- EDTPA immunity requires proof of a specific causal link between COVID-19 operational decisions and the alleged malpractice; general hospital-wide pandemic changes to operations are insufficient if the specific care at issue was not itself altered by those changes.
- A surgeon’s own testimony that his method of performing a procedure “did not change in any way as a result of COVID” is fatal to an EDTPA immunity defense, regardless of what other pandemic-related constraints may have existed at the facility.
- EDTPA immunity was strictly construed as conferring immunity from liability and required a “fact-intensive inquiry” — defendants bear the initial burden of demonstrating a specific nexus between the COVID-19 response and the particular care that is alleged to have been negligent.
- Although the EDTPA has expired and was ultimately amended to narrow its protections, litigation under the original statute continues to arise; this decision confirms the stringent showing required to invoke it.
Why It Matters
Although New York’s EDTPA was amended in 2021 to substantially curtail its immunity protections — and has since expired — numerous medical malpractice cases arising from 2020 treatments remain in active litigation. This decision provides an important benchmark for how courts will evaluate EDTPA immunity claims in those remaining cases. By requiring defendants to show a specific and direct connection between COVID-19 response activities and the particular care at issue, the court has made clear that general pandemic conditions at a hospital do not give rise to blanket immunity for routine surgical procedures.
For malpractice plaintiffs’ counsel, the decision highlights an effective deposition strategy: locking in the treating physician’s testimony that the specific procedure would have been performed identically regardless of COVID constraints effectively strips the EDTPA defense. For defense counsel in the remaining pandemic-era cases, the decision underscores the need for expert testimony specifically addressing how COVID-related resource limitations altered the standard of care for the particular procedure at issue — not just general descriptions of hospital-wide disruptions.