Opinion
Index No. EFCV-20-158775
01-06-2023
Abraham BACK and Melerena Back, Plaintiff, v. Dalkeith G. FACEY, D.O., Massena Hospital, Inc., Massena Memorial Hospital, Inc., and St. Lawrence Health System, Inc., Defendants.
Martin, Harding & Mazzotti, LLP (Peter P. Balouskas, Esq., of counsel); attorney for Plaintiffs; Martin, Ganotis, Brown, Mould & Currie, P.C. (Charles E. Patton, Esq., of counsel), attorney for Defendants.
Martin, Harding & Mazzotti, LLP (Peter P. Balouskas, Esq., of counsel); attorney for Plaintiffs;
Martin, Ganotis, Brown, Mould & Currie, P.C. (Charles E. Patton, Esq., of counsel), attorney for Defendants.
Mary M. Farley, J. This medical malpractice action arises from the care and treatment of Abraham Back ("Back" or "Plaintiff") during the COVID-19 pandemic, alleging Dr. Dalkeith Facey, D.O. and Massena Memorial Hospital (sued herein as Massena Hospital, Inc., Massena Memorial Hospital, Inc. and St. Lawrence Health System, Inc.) (collectively "Defendants"), deviated from accepted standards in performing a laparoscopic cholecystectomy (surgical removal of the gall bladder) on April 3, 2020, causing Back to suffer prolonged care and treatment, additional surgery, permanent severe pain and other injuries. Back's spouse, Melerena Back, asserts a derivative claim.
Defendants seek dismissal of the complaint pursuant to CPLR § 3211 (a) (7) for failure to state a cause of action premised upon COVID-19 liability immunity pursuant to the New York Emergency or Disaster Treatment Protection Act. Plaintiffs oppose the motion, arguing Defendants’ conduct falls outside the protections of the Act. For the reasons which follow the motion is denied.
Considered on this motion are NYSCEF Document Nos. 23-33; 42-51; 58-61.
BACKGROUND
A. Plaintiff's Medical Encounter
At approximately 1:00 A.M. on April 2, 2020, in the early months of the COVID-19 pandemic, Back presented to the Emergency Department of Massena Memorial Hospital ("MMH") with complaints of right upper quadrant abdominal pain and nausea. (NYSCEF Doc. 28 at 57-66; 186-187). He was examined by attending night physician Dr. Ryan Coates ("Coates"), who suspected Back was suffering a gallbladder attack. Id. Ultrasound showed the presence of gallstones and mild dilation of the common bile duct. Id. Coates referred Back to Dr. Facey, a surgeon employed by MMH, whose examination yielded a diagnosis of acute cholecystitis requiring a cholecystectomy. Id.
During the course of April 2, 2020, Back began to develop a new onset cough, shortness of breath, a fever and decreased oxygen levels. (Doc. 28 at 71-73, 80-81, 251, 260). He was transferred to a negative pressure/airborne isolation room and underwent testing to rule out COVID-19, among other things. (Doc. 28 at 57-66; 258). Medical records for April 2, 2020, show: Back was admitted to MMH from its Emergency Department at 3:13 A.M.; scheduled for an "MRCP and possible cholecystectomy [that day]" ; cleared for surgery by Dr. Nargish Akhter at 8:30 A.M.; noted to have a "low grade fever" at approximately 6:00 P.M. with an "unremarkable" chest x-ray ; and, rescheduled for surgery on April 3, 2020, as the "OR" was not available. (Doc. 28 at 59, 65, 67, 70, 71, 73, 79). Back underwent a laparoscopic cholecystectomy performed by Dr. Facey on April 3, 2020. (NYSCEF Docs. 27 at 25-27; 28 at 53-54, 80). On April 5, 2020, Back's post-surgical increase in bilirubin and liver enzyme levels resulted in his transfer to Champlain Valley Physicians Hospital (CVPH) for an endoscopic retrograde cholangiopancreatography (ERCG) to determine the cause. (Doc. 28 at 104, 259). Back remained at CVPH for further testing and treatment after an "unsuccessful" ERCG revealed injury to the common bile duct, later undergoing open bile duct reconstruction surgery at the University of Vermont Medical Center (UVMC) on July 7, 2020. (Docs. 27 at 4-5; 28 at 104, 106, 241, 257; Doc. 43 at ¶ 10). This suit followed.
Magnetic Resonance Cholangiopancreatography ("MRCP").
B. New York State COVID-19 Response
On March 7, 2020, then-New York Governor Andrew Cuomo issued Executive Order ("EO") No. 202, declaring a state of emergency in New York State resulting from the COVID-19 pandemic. To meet hospital needs of burgeoning COVID-19 patient caseloads, EO No. 202.10, issued on March 23, 2022, required the Commissioner of Health to "direct all general hospitals to increase the number of beds available to patients, including cancelling all elective surgeries and procedures" as defined by the Commissioner and requiring hospitals to submit COVID-19 Plans, or "Surge Plans" to the New York State Department of Health in pursuit of the goal. As an enforcement measure, the Commissioner was further authorized to suspend or revoke the operating certificate of any hospital that did not meet the capacity directives.
On April 3, 2020, New York State passed the Emergency or Disaster Treatment Protection Act (EDTPA). See L. 2020, C. 56, Part GGG, § 1. Codified in Public Health Law (PHL) Article 30-D at §§ 3080-3082, the EDTPA established limitations on health care facilities’ and health care professionals’ liability during the pandemic, retroactive to the initial emergency declaration on March 7, 2020. Id. Amended once, on August 3, 2020, to scale back immunity provisions for certain claims arising on or after August 3, 2020, (see L. 2020, C. 134, § 1-3), it was altogether repealed on April 6, 2021 (see L. 2021, C. 96, § 1). The stated purpose of the EDTPA, as set forth in PHL § 3080, was
"to promote the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency."
Set forth in PHL § 3082, the following criteria must be met to qualify for immunity under the EDTPA:
1. Notwithstanding any law to the contrary, except as provided in subdivision two of this section, any health care facility or health care professional shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services, if:
(a) the health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law;
(b) the act or omission occurs in the course of arranging for or providing health care services and the treatment of the individual is impacted by the health care facility's or health care professional's
decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives; and
(c) the health care facility or health care professional is arranging for or providing health care services in good faith.
2. The immunity provided by subdivision one of this section shall not apply if the harm or damages were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the health care facility or health care professional providing health care services, provided, however, that acts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.
PHL § 3081 (5) sets forth the definition of "health care services" covered by the EDTPA:
The term "health care services" means services provided by a health care facility or a health care professional, regardless of the location where those services are provided, that relate to: (a) the diagnosis, prevention, or treatment of COVID-19; (b) the assessment or care of an individual with a confirmed or suspected case of COVID-19; or (c) the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration.
CONTENTIONS OF THE PARTIES
Defendants seek dismissal of the Complaint citing EDTPA protection pursuant to PHL § 3082 (1). In support of their immunity claim they offer Back's MMH medical records and the affidavit of Ralene North, Registered Nurse and Chief Nurse Executive at MMH during the events at issue. (Doc. 29). North states that in compliance with New York State directives MMH developed a "Surge Plan" (Doc. 30) to bring additional inpatient beds "online" in the former medical-surgical unit by March 31, 2020, and repurposed two of three operating rooms to conserve PPE , beds, and ventilators. Id. at ¶ 4. She further posits Back's treatment at MMH "cannot be extricated from the COVID-19 pandemic or Defendants’ response thereto and many aspects of the care were impacted by the required measures undertaken to comply with the law and policy." Id. ¶ 7. Specifically, North points to the COVID-19 related: shortage of radiology technicians causing a several-hours delay in the reporting of results for Back's radiological study done the morning of April 2, 2022; reduction in the number of operating rooms; reduction in available anesthesiologists such that Back's surgery occurred on April 3rd instead of April 2nd; and, Back's isolation after developing symptoms which required COVID-19 screening, as all having impacted his care while at MMH. Id. at ¶¶ 8-10. North further states that MMH staff "provided care and treatment to Back in good faith during a time when there were more questions than answers in the fight against COVID-19." Id. at ¶ 11.
Personal Protective Equipment.
Although the medical records indicate the "OR" was unavailable on April 2nd, the North affidavit makes no reference to where in the medical records it states that no anesthesiologist was available for surgery on that date.
Plaintiffs oppose the motion arguing: Defendants have not met their burden on motion; no valid legal basis exists to dismiss the complaint pursuant to the EDTPA; facts relevant to the issues before the Court are unavailable to Plaintiffs since no depositions have occurred and discovery demands specifically related to the issues raised remain outstanding; and, Defendants’ reckless conduct falls within the exceptions to EDTPA immunity pursuant to PHL § 3082(2).
Plaintiffs rely on the affidavit of their expert (Doc. 43) to argue that neither the pandemic, nor Defendants’ response to it in complying with state directives, impacted, in any way, Back's treatment which resulted in his injuries. To this end, Plaintiffs make no claim as to the timing of Back's surgery, but rather only to the manner in which surgery was performed. Upon review of Back's medical records, Plaintiffs’ expert opines, within a reasonable degree of medical certainty based upon his education, training and experience, that there were a number of deviations from accepted standards in the performance of Back's surgery. Id. at ¶¶ 9-16. Plaintiffs’ expert states a records review shows Facey's April 2, 2020 note, dictated at 10:37 A.M.: makes "no references to Covid or any Surge Plan issues" (id. at ¶ 27); shows the MRCP findings were available by 10:37 A.M. despite the report not being signed until later in the day; and, that the plan for Back at that time included admission to the surgical service, IV fluids and antibiotics, with no fluids or food permitted after midnight in preparation for surgery the following day — all of which were consistent with the related nursing notes from the same date (id. at ¶ 28). The Expert further states: the " ‘Operative Report’ makes no reference to Covid or the Surge Plan as in any way related to the surgery performed [and] the ‘Discharge HPI’ makes no reference to Covid or the Surge Plan as part of the treatment course or decision making" (id. at ¶ 36); the surgery was determined to be "medically necessary at the time it was performed and was not an elective surgery that fell under the Surge Plan's elective surgery limitations" (id. at ¶ 20); regardless of which day the surgery was performed the treatment "would have been the same as Dr. Facey planned all along: laparoscopic cholecystectomy" (id. at ¶ 37); and, "there is no reference to or indication in Mr. Back's Massena Hospital chart that Covid or the Surge Plan in any way impacted the surgery Dr. Facey performed on [Back] and how the surgery was performed" (id. ). Ultimately, Plaintiffs’ expert opines Back's injuries resulted solely from Defendants’ negligence and are unrelated to the pandemic or Defendants’ response to the pandemic in support of state directives. Id. at ¶¶ 9-10, 17, 25-29, 35-37.
In reply, Defendants argue: they have conclusively established Back's treatment was impacted by their "decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives" (Doc. 58 at ¶ 3); no causal connection between their pandemic response and the alleged negligence or injury is required to qualify for EDTPA immunity; the lack of discovery does not bar dismissal on immunity grounds; and, Plaintiffs have not properly pled an exception to the immunity provided by the EDTPA.
DISCUSSION
A. Legal Standards
On a motion to dismiss for failure to state a cause of action the Court "must afford the complaint a liberal construction, accept the facts as alleged in the pleading as true, confer on the nonmoving party the benefit of every possible inference and determine whether the facts as alleged fit within any cognizable legal theory" ( Hilgreen v. Pollard Excavating, Inc. , 210 A.D.3d 1344, 179 N.Y.S.3d 405, 2022 N.Y. Slip Op. 06669 [2022] [internal citation omitted]). "This favorable treatment is not endless, however, and where the allegations in the complaint consist of bare legal conclusions, ‘fail[ ] to assert facts in support of an element of the claim, or ... the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery,’ dismissal is warranted[.]" Horowitz v. Fallon , 204 A.D.3d 1177, 1178, 167 N.Y.S.3d 188 (3d Dep't 2022), citing Connaughton v. Chipotle Mexican Grill, Inc. , 29 N.Y.3d 137, 53 N.Y.S.3d 598, 75 N.E.3d 1159 (2017).
"Affidavits and other evidentiary material may be considered to ‘establish conclusively that [the] plaintiff has no cause of action’ " ( Lin v. County of Sullivan , 100 A.D.3d 1076, 953 N.Y.S.2d 359 [3d Dep't 2012], quoting Rovello v. Orofino Realty Co., Inc. , 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] [emphasis added]; see Godfrey v. Spano , 13 N.Y.3d 358, 892 N.Y.S.2d 272, 920 N.E.2d 328 [2009] ), and a court may "freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" ( Leon v. Martinez , 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether [s/]he has stated one[.]" Guggenheimer v. Ginzburg , 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 (1977), accord: Carlson v. American Intern. Group, Inc. , 30 N.Y.3d 288, 67 N.Y.S.3d 100, 89 N.E.3d 490 (2017).
Where defendants seek the protection of a statute conferring immunity, they "must conform strictly with its conditions" ( Zaldin v. Concord Hotel , 48 N.Y.2d 107, 421 N.Y.S.2d 858, 397 N.E.2d 370 [1979] ), and the statute itself must be strictly construed. See Brown v. Bowery Sav. Bank , 51 N.Y.2d 411, 415, 434 N.Y.S.2d 916, 415 N.E.2d 906 (1980) ; accord: Dick v. Hudson City Savings Institution , 155 A.D.2d 807, 809, 548 N.Y.S.2d 84 (3d Dep't 1989). As also relevant here,
"When presented with a question of statutory interpretation, a court's primary consideration is to ascertain and give effect to the intention of the Legislature. We have long held that the statutory text is the clearest indicator of legislative intent, and that a court should construe unambiguous language to give effect to its plain meaning. In the absence of a statutory definition, we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts in determining the meaning of a word or phrase.
Where the statutory language is unambiguous, a court need not resort to legislative history. Further, a statute must be construed as a whole and its various sections must be considered together and with reference to each other." Matter of Walsh v. NY State Comptroller , 34 N.Y.3d 520, 524, 122 N.Y.S.3d 209, 144 N.E.3d 953 [2019] [internal quotation marks and citations omitted]; accord : Colon v. Martin , 35 N.Y.3d 75, 125 N.Y.S.3d 346, 149 N.E.3d 39 (2020).
Further, "[o]nce [a defendant] invokes [the qualified immunity] of PHL § 3082 and demonstrates pursuant to subdivision 1 thereof that the statute applies, then subdivision 2 thereof establishes the substantive law defining the scope of the [defendant's] duty to the plaintiff." Crampton v. Garnet Health , 73 Misc.3d 543, 155 N.Y.S.3d 699 (Sup. Ct. Orange County 2021) ; see Ferres v. City of New Rochelle , 68 N.Y.2d 446, 510 N.Y.S.2d 57, 502 N.E.2d 972 (1986). "The plaintiff must then plead and prove that the harm or damages alleged ‘were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.’ " Id. at 558, 155 N.Y.S.3d 699, citing PHL § 3082 (2). Lastly, Supreme Court has the discretion "to deny a motion to dismiss without prejudice to renewal after discovery if it appears that ‘facts essential to justify opposition may exist but cannot then be stated[,]’ " ( CPLR 3211[d] ), but, "[a]t the very least, plaintiffs must make a ‘sufficient start’ and show their position not to be frivolous." Herzog v. Town of Thompson , 216 A.D.2d 801, 628 N.Y.S.2d 869 (3d Dep't 1995), citing Peterson v. Spartan Industries, Inc. , 33 N.Y.2d 463, 467, 354 N.Y.S.2d 905, 310 N.E.2d 513 (1974) ; see Gottlieb v. Merrigan , 119 A.D.3d 1054, 990 N.Y.S.2d 109 (3d Dep't 2014). "In order to warrant such discretionary relief, the party seeking the stay must demonstrate some evidentiary basis for its claim that further discovery would yield material evidence and also demonstrate how further discovery might reveal material facts in the movant's exclusive knowledge." Beesmer v. Besicorp Development, Inc. 72 A.D.3d 1460, 900 N.Y.S.2d 472 (3d Dep't 2010) (internal quotation marks and citations omitted). "However, if the complaint fails to state a cause of action as a matter of law and no amount of discovery can salvage the claim, it must be dismissed and no discovery is warranted. Herzog , supra at 802-803, 628 N.Y.S.2d 869.
B. Analysis
Defendants, in the first instance, must establish they meet the three criteria of PHL § 3082 (1) to trigger EDTPA immunity. Here, only the second criteria is disputed, the crux of which is whether Back's treatment was "impacted by the health care facility's or health care professional's decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives." PHL § 3082 (1) (b). Defendants claim several aspects of Back's treatment -- all related to pre-surgical care and surgical timing, but nevertheless part of Back's continuum of care -- were impacted by pandemic related protocols and therefore meet this criteria. Plaintiffs counter that the treatment at issue -- limited by their complaint solely as to how the cholecystectomy was performed, and wholly unrelated to its timing -- was not impacted, in any way, by Defendants’ decisions or activities in response to or as a result of the pandemic and in support of state directives. The issue thus turns on whether Back's April 3, 2022 cholecystectomy may be segregated from the continuum of treatment he received while hospitalized at MMH for purposes of determining whether EDTPA immunity applies. The Court answers this question in the affirmative.
New York PHL § 3080, in relevant part, states:
"It is the purpose of this article to promote the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency" (PHL § 3080) (emphases added).
Read in conjunction with the PHL § 3082 criteria requiring the "treatment of the individual [be] impacted by the health care facility's or health care professional's decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives," the Court concludes that EDTPA's qualified immunity attaches where the alleged liability arises as a consequence of those "decisions and activities", not merely alongside them. PHL § 3082 (2). Defendants have failed to show the alleged negligent conduct -- i.e., deviation in the cholecystectomy surgery -- was impacted in the manner required by the statute. Further, a review of the scant available case law -- almost entirely from trial level courts in factually distinct matters -- does not compel a different result. CONCLUSION
Defendants’ submissions, having failed to show they meet all the necessary criteria of PHL § 3082(1), neither establish entitlement to immunity nor conclusively establish Plaintiffs have no cause of action. Having decided the motion on narrower grounds, it is unnecessary to reach the issues of whether Plaintiffs properly pled an exception to EDTPA immunity or whether resolution of that issue should be held in abeyance pending completion of discovery.
Defendants’ motion is denied.