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New York was hit particularly hard by the COVID-19 outbreak. Healthcare providers scrambled to deal with a new threat that was sickening and killing thousands. Mistakes were made, some of them rising to the level of negligence and beyond.

But with an illness as foreign as COVID-19, more mistakes than usual are to be expected, which is why New York passed Public Health Law Article 30-D, the Emergency or Disaster Treatment Protection Act (EDTPA).

EDTPA, which was enacted near the beginning of the pandemic on April 3, 2020, provided civil and criminal immunity for healthcare professionals involved in the treatment of COVID-19 patients.

Its main purpose was to protect healthcare professionals from legal liability during the pandemic, which allowed them to treat patients without the worry of potential legal issues in the future. So does this mean that a person with undiagnosed COVID-19 in New York has no recourse against healthcare providers? Not necessarily.

Qualified Immunity of the EDTPA

The EDTPA indeed provided immunity for healthcare professionals, but not total immunity. Additionally, the EDTPA was repealed just about a year after it was enacted.

This means that if your undiagnosed COVID-19 case occurred outside of the EDTPA’s effective date, there is no immunity available, and you can likely sue if negligence was involved.

If you are inquiring about a case of undiagnosed COVID-19 during the effective dates of the EDTPA, however, it is important to note that the immunity conferred by this act was qualified and not total.

Under the provisions of the EDTPA, a healthcare professional could not be sued based on their treatment of COVID-19 patients if that treatment was done with simple medical malpractice or negligence. However, instances of gross negligence, recklessness, or intentional or malicious behavior could form the basis of a medical malpractice lawsuit.

Hence, if the circumstances that led to your undiagnosed COVID-19 involved basic negligence, you likely cannot sue if they occurred between March 2020 and April 2021. However, after the statute was repealed, cases of basic negligence involving missed diagnoses could indeed warrant medical malpractice lawsuits.

Negligence vs. Gross Negligence and Malice

Basic negligence in the healthcare arena involves lapses that cause a healthcare professional to unintentionally provide patient treatment below the required standards of care. In a case involving a missed diagnosis, examples of basic negligence might include:

• Failure to order appropriate testing
• Failure to use appropriate testing equipment
• Failure to administer tests properly
• Failure to read tests and scans properly

Gross negligence, on the other hand, is far more serious than simple negligence. Gross negligence occurs when a person acts in reckless disregard for the rights of others. Reckless disregard for rights means a person knows that a course of action is unreasonably dangerous to others yet decides to continue with the action.

Non-EDTPA Cases of Undiagnosed COVID-19

If you are inquiring about a case outside of the scope of the EDTPA, then the answer is yes: you can likely get legal recourse for undiagnosed COVID-19. Proving negligence is still necessary, but not in the same way.

Since the EDTPA is no longer active, you need not demonstrate gross negligence or intentionality. You simply need to show that the healthcare provider acted with simple medical negligence when they failed to diagnose you with COVID-19.

Damages for Undiagnosed COVID-19

If your attorney builds a successful case for undiagnosed COVID-19, you may be entitled to various damages as compensation for your losses. In New York, damages are typically either non-economic or economic.

Economic damages, as the name implies, cover financial losses, such as:

• Costs and expenses associated with medical treatment and care
• Missed work opportunities and lost income
• Lost future earning capabilities
• Expenses for transportation to and from medical appointments
• Homecare expenses for basic work around the house

Non-economic losses, on the other hand, are not financial but just as real.

Damages for non-economic losses cover:

• Pain and suffering
• Mental anguish
• Loss of enjoyment of life

If the healthcare provider acted with recklessness, malice, or intentionally, you may also be entitled to punitive damages. Punitive damages are intended for punishment and may significantly increase your total compensation payout.

A Seasoned Medical Malpractice Lawyer Can Help

The legal questions surrounding COVID-19 and medical liability are complex. If a healthcare professional failed to diagnose your COVID-19 and should have, you may be entitled to significant damages.

At Silberstein, Awad & Miklos, we can accurately evaluate your case and determine your best options for obtaining the compensation you deserve. Contact us to schedule a free consultation with an experienced medical malpractice lawyer today.