Bindu Nair Authors Article for New York Law Journal on Repeal of EDTPA

New York, N.Y. (December 8, 2022) - New York Partner Bindu Nair recently authored an article for the New York Law Journal (NYLJ) titled, "Fourth Dept. Holds Repeal of EDTPA Is Prospective, Not Retroactive, Impacting Currently Pending COVID-19 Nursing Home Litigation." The article discusses strategies for defending healthcare providers and facilities against COVID-19-related claims in light of the recent New York appellate court decision on the repeal of the state’s Emergency or Disaster Treatment Protection Act (EDTPA).

Ms. Nair opens the article by explaining that the New York Appellate Division, Fourth Judicial Department, recently determined that the statute repealing the EDTPA is to be given prospective application and not retroactive application. She posits that the court’s determination of this "hotly contested" issue, "will significantly impact those COVID-19 litigation claims being brought against nursing homes recently in the Empire State. . . ."

The author goes on to describe the history of the EDTPA, which was enacted in 2020 during the COVID-19 pandemic, and "provided temporary immunity to healthcare and long-term care facilities and healthcare professionals from claims related to the care of individuals with COVID-19." She also discusses the EDTPA’s repeal in April 2021, noting that plaintiffs’ firms have since filed hundreds of lawsuits alleging claims against nursing homes that relate back to the beginning of the pandemic.

Next, Ms. Nair discusses the New York Appellate Division’s decision in Ruth v. Elderwood at Amherst, explaining that the court concluded "the repeal [of the EDTPA] was meant to be applied prospectively only from on and after the date of the repeal." While opining that "an appeal is likely" in Ruth, the author observes that the appellate court’s decision currently serves as binding precedent. Ms. Nair concludes, "Therefore, these cases that fall under the timeframe of when the EDTPA immunity provision was in place have a good defense for dismissal and should move under this precedent."

Ms. Nair, who recently authored a legal alert on the Ruth decision, is a member of Lewis Brisbois’ General Liability, Healthcare, and Medical Malpractice Practices. She has extensive experience representing physicians, renowned medical institutions, long-term care facilities, outpatient medical facilities, and nursing homes.

Read the full NYLJ article here (subscription may be required).