Supreme Court, Onondaga County, October 4, 2021

Christian T. Payne for defendants.

Daniel P. Laraby for plaintiffs.

By notice of motion dated September 13, 2021, defendants Jaclyn K. Snyder, RPA-C, Bruce N. Silverstein, M.D., and Familycare Medical Group, P.C., seek an order pursuant to CPLR 3211 (a) (7) dismissing plaintiffs' complaint in part pursuant to Public Health Law §§ 3080-3082 (see NY St Cts Elec Filing [NYSCEF] Doc No. 34, notice of motion). Plaintiffs allege that between November 4, 2015, and sometime in 2020, plaintiff Erika Spearance sought and received medical care and treatment from defendant Silverstein at defendant Familycare (see NYSCEF Doc No. 1, complaint ¶ 20). Plaintiffs further assert that between October 12, 2018, and July 8, 2020, "Defendants failed to take proper, adequate and timely steps to diagnose Plaintiff Erika Spearance's basal cell carcinoma" (ibid. ¶ 22). Plaintiffs oppose the relief sought.

Defendants assert that on March 7, 2020, former Governor Andrew Cuomo issued Executive Order No. 202 (9 NYCRR 8.202) declaring a state of emergency in New York due to the COVID-19 pandemic and subsequently issued Executive Order No. 202.10 (9 NYCRR 8.202.10) which provided certain limitations on liability from medical malpractice (see NYSCEF Doc No. 35, attorney affirmation ¶ 3). The limitations on liability were codified in Public Health Law §§ 3080-3082. Defendants assert that plaintiffs' claims relating to care rendered on April 16, 2020, May 27, 2020, and July 8, 2020, should be dismissed (ibid. ¶ 12).

Public Health Law § 3082 provides:

"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 [*2]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:{**73 Misc 3d at 771}

"(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" (Public Health Law § 3082, as enacted by L 2020, ch 56, § 1, part GGG).

"[I]t is clear from the express language of Public Health Law § 3082 that it is not merely a hospital's or health provider's care to persons affected by the coronavirus pandemic, in the abstract, that entitles it to the immunity sought here, but that the care rendered to the person making the claim is affected, in some way, by the hospital's or provider's response to the pandemic" (Matos v Chiong, 2020 NY Slip Op 34586[U], *3 [Sup Ct, Bronx County, Dec. 9, 2020]).

The court in Matos ultimately denied defendants' motion as the moving defendants failed to make the necessary showing that the pandemic had any impact on the plaintiff's treatment (ibid. at *3-4). Defendants argue the Matos rationale was used in two other cases with mixed results. In Townsend v Penus, the court concluded the plaintiff's treatment was not impacted by the emergency response to the pandemic (see Townsend v Penus, 2021 NY Slip Op 32375[U] [Sup Ct, Bronx County, June 1, 2021, Higgitt, J.]; NYSCEF Doc No. 48). In Hampton v City of New York, the court found the defendants did make a proper showing that treatment was impacted by the defendants' emergency response to the pandemic (see Hampton v City of New York, 2021 NY Slip Op 32327[U] [Sup Ct, Bronx County, May 18, 2021, Danziger, J.]; NYSCEF Doc No. 47).

Defendants argue the plaintiff's treatment was impacted by defendants' emergency response to the pandemic as the plaintiff's appointments were conducted by telemedicine on April 16, 2020, May 27, 2020, and July 8, 2020. The use of telemedicine by the defendants was specifically implemented as{**73 Misc 3d at 772} part of their emergency response to the pandemic (see NYSCEF Doc No. 36, Snyder aff ¶¶ 3-4). Defendants urge the court to grant the requested relief.

Plaintiffs oppose the relief sought. "[T]he statute involved here confers immunity from liability, and it therefore must be strictly construed" (Brown v Bowery Sav. Bank, 51 NY2d 411, 415 [1980], citing Zaldin v Concord Hotel, 48 NY2d 107 [1979]). Plaintiffs argue that defendants have not demonstrated that the treatment of plaintiff Spearance was impacted (see NYSCEF Doc No. 54, mem of law at 4 et seq.). Plaintiffs argue only Hampton found the liability shield applicable and in that case elective surgeries were prohibited by emergency response to the pandemic (see Hampton at *3). Contrast with the instant matter, nothing precluded "Defendant Snyder from obtaining a wound culture to confirm an infection, or from referring Mrs. Spearance for evaluation of a nearly two-year-old cancer, rather than continuing to treat it as though it were an infection" (see NYSCEF Doc No. 54, mem of law at 5). Plaintiffs proffer photos which they argue clearly show the basal cell carcinoma and its progression over time (see NYSCEF Doc Nos. 55, 58, photos). Plaintiffs note that [*3]defendant Snyder at no time between October 12, 2018, and June 8, 2020, ever considered evaluating or treating Spearance for cancer (see NYSCEF Doc No. 43, Snyder tr at 114-115). Plaintiffs argue defendants have failed to meet their burden in proving plaintiff's treatment was actually impacted by the emergency response to the pandemic and urge the court to deny the relief sought.

Defendants reply and reiterate their arguments (NYSCEF Doc No. 60). Defendants state the legal standard for deciding a motion to dismiss pursuant to CPLR 3211 (a) (7) is that the court must

"accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. At the same time, however, allegations consisting of bare legal conclusions . . . are not entitled to any such consideration" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141-142 [2017] [citations and brackets omitted]).

Defendants urge the court to rely on the representations made by defendant Snyder that plaintiff's care was impacted by the defendants' emergency response to the pandemic (see NYSCEF Doc No. 60, reply ¶ 5).

{**73 Misc 3d at 773}Defendants further argue plaintiffs are mistaken in their argument that "the nature of a medical provider's evaluation of a patient is somehow separate and distinct from the medical treatment rendered by that provider" (ibid. ¶ 6). Defendants further proffer "that the gravamen of an action sounding in medical malpractice is 'challenged conduct [which] constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment' " (ibid. ¶ 7, citing Weiner v Lenox Hill Hosp., 88 NY2d 784, 788 [1996]). Defendants assert that the emergency steps taken in response to the pandemic prevented a wound culture at the April 16, 2020 and May 27, 2020 telemedicine visits (ibid. ¶ 9). Defendants assert that plaintiffs' claims that the pandemic did not impact plaintiff Spearance's treatment are without merit.

Defendants further assert that the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA), article 30-D of the Public Health Law, was not retroactive. Defendants note the repeal, chapter 96 of the Laws of 2021, was effective April 6, 2021, and therefore was not retroactive (ibid. ¶ 12). Defendants pray the court grant the relief requested.

Discussion

Defendants seek partial dismissal of plaintiffs' complaint relating to alleged medical malpractice during the pandemic on April 16, 2020, May 27, 2020, and July 8, 2020, for failure to diagnose and/or treat basal cell carcinoma.

"On a CPLR 3211 (a) (7) motion to dismiss, we accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The allegations in a complaint, however, cannot be vague and conclusory. . . , and bare legal conclusions will not suffice" (Medical Care of W. N.Y. v Allstate Ins. Co., 175 AD3d 878, 879 [4th Dept 2019] [internal quotation marks, brackets and citations omitted]).

"Unlike on a motion for summary judgment where the court searches the record and assesses the sufficiency of the parties' evidence, on a motion to dismiss the court merely examines the adequacy of the pleadings" (Davis v Boeheim, 24 NY3d 262, 268 [2014] [internal quotation marks and citations omitted]). "The affidavits or testimony submitted in support of a motion to dismiss must conclusively establish the lack of a claim or{**73 Misc 3d at 774} cause of action" (Matos, 2020 NY Slip Op 34586[U], *3, citing Godfrey v Spano, 13 NY3d 358 [2009]). Defendants assert that the EDTPA as codified in Public Health Law § 3080 et seq. precludes the type of liability upon which plaintiffs base their claims for alleged malpractice occurring on plaintiff on April 16, 2020, May 27, 2020, and July 8, 2020. "[T]he statute involved here confers immunity from liability, and it therefore must be strictly construed" (Brown at 415). The evidence tendered in [*4]support of their motion does not support defendants' desired outcome.

Public Health Law § 3082 contained three prongs, all of which must be met to secure the immunity from liability:

"(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" (Public Health Law § 3082 [1], as enacted by L 2020, ch 56, § 1, part GGG).

Defendant Snyder merely states that her treatment of plaintiff Spearance was impacted by the pandemic as defendants were utilizing telemedicine. As plaintiffs point out, defendants' actions cannot be viewed in a vacuum. Defendant Snyder treated plaintiff Spearance on the mistaken belief that she was suffering from an infection before the pandemic and continued to treat Spearance on the same basis after the pandemic began. The treatment of plaintiff Spearance was ongoing. At the procedurally young stage that this CPLR 3211 motion is brought, defendants have not met their high burden.

Now, therefore, upon reading and filing the papers with respect to the motions, and due deliberation having been had thereon, it is hereby ordered that defendants' partial motion to dismiss plaintiffs' complaint is denied in toto.