Lisa Thomas, as Administratrix of the Estate of Francis Spigner, Deceased v. Concourse Rehabilitation and Nursing Center, Inc.
Attorneys and Parties
Brief Summary
Nursing home liability during the COVID-19 pandemic and the scope of immunity under the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law § 3082[1]) [affords immunity to healthcare facilities and providers from liability that may result from the treatment of individuals with Covid-19 during the pandemic].
The Supreme Court, Bronx County, granted the nursing home's CPLR 3211(a)(7) [rule allowing dismissal for failure to state a cause of action] motion to dismiss based on EDTPA immunity.
The order granting the motion to dismiss; the Appellate Division reversed and denied the motion.
Defendant failed to conclusively establish entitlement to EDTPA immunity because it did not show the pandemic affected decedent’s post–May 2020 care for multiple comorbidities; the immunity issue is fact-intensive; only partial medical records were provided and discovery was outstanding; and conflicting allegations regarding the cause and timing of death precluded dismissal.
Background
Plaintiff alleges that while residing at defendant’s nursing home, the decedent contracted COVID-19 on April 9, 2020, developed distress and hypoxia, and later died on March 31, 2021. Plaintiff claims defendant was negligent and grossly negligent in failing to prevent and control infections and to provide adequate care to elderly residents. Defendant moved to dismiss under CPLR 3211(a)(7), invoking EDTPA immunity. The facility’s Director of Nursing, Jean Claude Laborde, averred that decedent was diagnosed and treated for COVID-19 in April 2020, was deemed asymptomatic by May 2020, and thereafter was treated for complex conditions (chronic heart failure, end-stage renal disease, peripheral vascular disease). Laborde opined the March 2021 decline was not causally related to COVID-19. The motion court recognized EDTPA’s repeal in April 2021 was not retroactive but granted dismissal based on immunity.
Lower Court Decision
The Supreme Court, Bronx County, granted defendant’s CPLR 3211(a)(7) motion, allowing reliance on EDTPA despite its repeal, and dismissed the complaint on immunity grounds.
Appellate Division Reversal
Reversed, motion denied. The Court held defendant did not conclusively show that all relevant treatment was impacted by COVID-19-related decisions or activities, particularly after decedent became asymptomatic in May 2020. Given the fact-intensive nature of EDTPA immunity, incomplete production of medical records, outstanding discovery, and conflicting allegations regarding the cause and timing of death, dismissal at the pleading stage was premature.
Legal Significance
Reaffirms strict construction of EDTPA immunity and that defendants bear a heavy burden to show, with conclusive evidence, that the challenged care was connected to COVID-19 treatment or response. Clarifies that EDTPA’s repeal is not retroactive, yet immunity cannot be resolved on a pre-answer motion without a full factual record, consistent with Holder v Jacob and Jackson v BronxCare Health Sys.
On a CPLR 3211(a)(7) motion, a nursing home seeking EDTPA immunity must provide complete, conclusive proof tying the alleged negligence to COVID-19 treatment or operational decisions; absent such a showing, dismissal is denied and discovery must proceed.