No — COVID-era immunity is not a blanket shield. Under New York’s Emergency or Disaster Treatment Protection Act (EDTPA), a hospital, nursing home or doctor is immune only if it shows the pandemic actually affected the specific care that caused the harm. New York’s appeals courts have repeatedly refused immunity when the alleged mistake—such as a surgical error or a missed diagnosis—was not tied to the provider’s COVID response.
Key takeaways
- Two laws are raised as defenses: New York’s EDTPA (care from March 7, 2020 through April 5, 2021) and the federal PREP Act (claims tied to “covered countermeasures” such as ventilators, tests and vaccines).
- The provider must show a link between the pandemic’s impact and the alleged mistake. A busy, understaffed hospital is not enough on its own.
- For care from August 3, 2020, on, the law was narrower: it covered diagnosing or treating COVID-19, or care “as it relates to” COVID-19 — not every condition a COVID patient develops.
- EDTPA never covered gross negligence, reckless misconduct, willful or intentional misconduct.
- EDTPA was repealed on April 6, 2021, but New York appeals courts have held the repeal is not retroactive, so the defense still comes up in cases about 2020–2021 care.
Originally published in the New York Law Journal by Thomas A. Moore and Matthew Gaier — “Recent Decisions on COVID-19 Related Immunity,” October 5, 2026. Read the full column on Law.com (subscription may be required). This page is a plain-English summary for patients and families.
What COVID-era immunity laws apply in New York?
Providers usually rely on two laws:
- EDTPA (former N.Y. Public Health Law Article 30-D, §§ 3080–3082). It gave hospitals, nursing homes, and health professionals immunity if three conditions were met: (1) the care was given under COVID-19 emergency rules or otherwise in accordance with law, (2) the patient’s treatment was impacted by the provider’s decisions or activities in response to the outbreak, and (3) the care was given in good faith.
- The federal PREP Act (42 U.S.C. § 247d-6d). It covers claims with a causal relationship to the use of a “covered countermeasure,” such as a ventilator, test, or vaccine.
Courts have also held that Governor Cuomo’s Executive Order 202.10 does not create a separate immunity apart from EDTPA (Holder v. Jacob, 231 A.D.3d 78 (1st Dept. 2024); Macru v. Shorefront Operating, LLC, 244 A.D.3d 1092 (2nd Dept. 2025)).
EDTPA was enacted April 3, 2020, and made effective back to March 7, 2020. It was narrowed effective August 3, 2020, and repealed by Chapter 96 of the Laws of 2021, signed April 6, 2021. Every Department of the Appellate Division has held the repeal does not apply backward (for example, Ruth v. Elderwood at Amherst, 209 A.D.3d 1281 (4th Dept. 2022); Whitehead v. Pine Haven Operating LLC, 222 A.D.3d 104 (3rd Dept. 2023); Hasan v. Terrace Acquisitions II, LLC, 224 A.D.3d 475 (1st Dept. 2024); Sapienza v. Tromba, 241 A.D.3d 722 (2nd Dept. 2025)).
Does it matter when the care happened?
Yes. There were two versions of EDTPA:
- March 7 – August 2, 2020: a broad version that could reach almost any treatment, as long as the three conditions were met.
- August 3, 2020 – April 5, 2021: a narrower version limited to diagnosing or treating COVID-19, or assessing or caring for someone with a confirmed or suspected case as it relates to COVID-19.
For care in late 2020 or early 2021, a provider generally has a harder time claiming immunity for a problem that is not a COVID-19 complication.
What have New York appeals courts decided recently?
The Moore and Gaier column reviews several new Appellate Division decisions. In plain terms:
A surgical error is not excused just because the hospital was strained
Back v. Facey, 2026 NY Slip Op 03858 (3rd Dept. June 18, 2026). A patient had gallbladder surgery in April 2020 and later needed bile duct reconstruction after surgical clips blocked the duct. The hospital described how COVID-19 changed its operations — converted operating rooms, a one-day delay, no robotic system. The court still denied summary judgment on immunity: the claims were about a surgical error and a missed post-operative diagnosis, not a delay, and the surgeon testified the pandemic did not change how he performed the procedure. The court said defendants “must establish a nexus” between the alleged negligence and their COVID-19 response.
Immunity can apply to part of a case but not all of it
Sapienza v. Tromba, 241 A.D.3d 722 (2nd Dept. 2025). An in-person office visit on March 16, 2020, before the office closed, was not protected. Later telephone care in April 2020, after the office had closed under the emergency declaration, was protected.
When COVID-19 itself changed what care was safe, immunity applied
Madourie v. Montefiore Med. Ctr., 246 A.D.3d 467 (1st Dept. 2026). A sedated, ventilated COVID-19 patient developed a pressure ulcer. The hospital’s evidence showed nurse-to-patient ratios as high as 1 to 10 and that repositioning her risked disrupting her breathing on the ventilator. The court upheld dismissal under EDTPA, finding her injuries were “a direct result of COVID-19.”
A COVID-19 diagnosis does not make all care “COVID care”
Damiani v. WSNCH N., Inc., 244 A.D.3d 1059 (2nd Dept. 2025). Under the narrower post-August 2020 version, a hospital could not get a pressure-ulcer case dismissed simply because the patient had COVID-19; it had not shown that pressure ulcers are a complication of COVID-19 specifically. The court also rejected PREP Act immunity at that stage because the hospital did not establish the ulcer arose from ventilator use.
The column describes “a growing consensus” that the pandemic’s impact on a patient’s treatment must relate to the alleged departures for immunity to apply.
What does this mean if your family was harmed during the pandemic?
- A COVID-19 immunity defense does not automatically end a case. The provider has to prove the link, and the specific facts matter.
- Records are central. Staffing levels, turning and wound-care notes, transfer records, and operating-room availability often decide whether immunity applies.
- Deadlines are the biggest hurdle. In New York, most medical malpractice claims must be filed within 2 years and 6 months (CPLR 214-a), and wrongful death claims within 2 years of death (EPTL 5-4.1). Pandemic executive orders paused these deadlines until November 3, 2020, but for most adult claims about 2020–2021 care, the ordinary filing window has now passed. Special rules can apply — for example, to claims on behalf of children or to continuous treatment. Claims against public hospitals, such as NYC Health + Hospitals, also require a notice of claim, generally within 90 days (General Municipal Law § 50-e). A lawyer can review your specific dates.
- Other states: EDTPA is a New York law. New Jersey, Pennsylvania and Connecticut addressed pandemic liability under their own laws; the federal PREP Act applies in every state. This page covers New York.
Related: New York medical malpractice lawyers · Wrongful death · Earlier column: COVID-19 issues in malpractice cases · About the authors: Thomas A. Moore and Matthew Gaier · KDLM in the news
Frequently asked questions
Did New York give hospitals total immunity during COVID-19?
No. EDTPA required the provider to meet three conditions, including that its pandemic response actually affected the patient’s treatment, and it never covered gross negligence or reckless, willful or intentional misconduct.
Is EDTPA still in effect?
It was repealed on April 6, 2021, but New York appeals courts have held the repeal does not apply backward, so it can still be raised for care given between March 7, 2020 and April 5, 2021.
Do nursing homes and hospitals get COVID-19 immunity for bedsores?
Not automatically. In Madourie, immunity applied because COVID-19 made the patient unsafe to reposition; in Damiani, the hospital had not shown the pressure ulcer was tied to COVID-19 care.
What is the PREP Act?
A federal law that protects against claims causally related to “covered countermeasures” such as ventilators, tests and vaccines. It does not apply where the provider cannot connect the injury to the countermeasure.
Can I still file a claim for care I received in 2020?
Possibly, but filing deadlines are the main obstacle. Most adult claims about 2020–2021 care are likely past the standard deadline, though special rules exist, such as for children. Speak with a malpractice attorney promptly.
This article summarizes and comments on a New York Law Journal column by KDLM partners Thomas A. Moore and Matthew Gaier. It is general information, not legal advice, and reading it does not create an attorney-client relationship.
Questions about care during the pandemic? Call (212) 267-4177 for a free consultation.