Liability Insurance Coverage To New York Medical Providers During The COVID-19 Pandemic
In response to the extraordinary, severe and overwhelming burdens of care and treatment placed on all medical providers by the COVID-19 Pandemic, the New York legislature recently passed amendments to Article 30 of New York Public Health Law, effective retroactively to March 7, 2020, entitled “The Emergency or Disaster Treatment Protection Act.” These amendments provided broad, but conditional, immunity to medical care facilities and their professional staff, arising from patient care and treatment during the ongoing emergency period of the COVID-19 pandemic. The immunity from civil liability applies when the medical care is provided pursuant to the emergency rules for COVID-19 prevention and care and provided that the provider acted in “good faith.”
While passage of this statute is generally good news for medical providers, an unintended consequence of the grant of immunity is that it may render medical providers vulnerable to claims which may not be covered by insurance. The new statute still permits civil suits for personal injury or wrongful death if the facility’s actions or inactions constitute willful misconduct, recklessness, intentional infliction of harm or “gross negligence.”
The ban on filing new complaints has been lifted in New York. Expect a flood of personal injury/wrongful death complaints against medical providers alleging that the provider’s acts or omissions with respect to patient\resident care constituted recklessness, willful misconduct and/or “gross negligence”.
As with any lawsuit, you should immediately forward any complaint to your insurance carrier. However, don’t be surprised if your carrier disclaims or refuses to provide any coverage. Whether denominated as Health Care Professional and General Liability Policies or Long-Term Care Facilities Liability Policies, liability policies issued to medical providers almost invariably contain exclusions for injury that is caused by intentional acts. If you receive a disclaimer letter from your insurer, be aware that there are rules of insurance policy interpretation that can be relied on to dispute any disclaimer, and which may help you to obtain coverage, or, at a minimum, be used to compel the insurance carrier to pay for your defense. For example,
· If a complaint pleads any cause of action in a complaint potentially covered by your policy, such as negligence, the carrier must defend all causes of action even if otherwise excluded, such as arguably one for gross negligence.
· In the event a carrier nevertheless issues a Reservation of Rights letter stating it will defend and indemnify some claims but not others (such as “gross negligence”), the policyholder has the absolute right under those circumstances to select its own defense counsel and the carrier must pay defense counsel’s reasonable fees and expenses.
It is incumbent on any medical provider to not only immediately notify its carrier of any lawsuit or any attorney demand or claim letter, but also to seek advice of coverage counsel to ensure that you receive the coverage for which you paid.