United States: New York Partners Share Insights On Recent Legal Developments For Ahrmny Journal

New York Partners Karen L. Campbell, Corey Shulman, and Bindu Nair recently penned articles for the Association for Healthcare Risk Management of New York, Inc.'s (AHRMNY) Risk Management Journal. Ms. Campbell and Mr. Shulman's article discusses the New York Adult Survivors Act (ASA), while Ms. Nair's article addresses the repeal of New York's Emergency or Disaster Treatment Protection Act (EDTPA).

In the first article, titled "Preparing for Litigation Under New York's Adult Survivors Act," Ms. Campbell and Mr. Shulman open with a description of the ASA, which New York Governor Katherine Hochul signed into law on May 24, 2022. They explain that the law will temporarily revive claims for injuries resulting from sexual abuse or assault, regardless of when the abuse or assault occurred. Noting that plaintiffs' attorneys already have "launched vigorous advertising campaigns," the authors state that they "expect ASA claims to target deep-pocket or well-insured defendants." The purpose of this article is "to prepare insurers, insureds, risk managers, and attorneys for a flood of litigation in 2022 through 2023."

After a summary of the ASA, the authors draw parallels between the ASA and the New York's Child Victims Act of 2019, identifying anticipated causes of action and defenses. The article goes on to provide suggestions for identifying and limiting potential liability. Ms. Campbell and Mr. Shulman close the article by recommending that "corporate entities, insurers, and risk managers must be prepared to address and defend these cases on a national scale." They advise, "Be proactive and prepare for ASA litigation. . . . The earlier and more thorough entities are in identifying potential ASA plaintiffs through prior complaints or lawsuits, the better their attorneys can evaluate the lawsuit's defensibility."

In Ms. Nair's article, titled "Fourth Department Holds Repeal of EDTPA is Prospective, Not Retroactive, Impacting Currently Pending COVID-19 Nursing Home Litigation," she explains that the New York Appellate Division, Fourth Judicial Department, has concluded that the statute repealing the EDTPA should be given prospective application, rather than retroactive application. The article also details the history of the EDTPA, which was enacted in 2020 during the COVID-19 pandemic to provide temporary immunity to healthcare facilities from claims related to the treatment of COVID-19 patients. Observing that that the recent appellate court decision serves as binding precedent, Ms. Nair ultimately concludes that, "these [COVID-19] 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. Campbell, who co-authored a legal alert on the ASA with Mr. Shulman earlier this year, is a chair of Lewis Brisbois' General Liability Practice and a co-chair of its Diversity, Equity & Inclusion Committee. With more than 30 years of experience as a trial attorney, Ms. Campbell maintains a broad general liability and trial practice that includes defending hotel industry clients against a variety of claims and litigating matters under the New York and New Jersey Child Victims Act.

Mr. Shulman is a member of Lewis Brisbois' General Liability, Healthcare, and Medical Malpractice Practices. He focuses on the defense of home health care agencies, assisted living facilities, nursing homes, businesses, non-profit organizations, and religious institutions in general liability, premises liability, and negligent hiring/supervision matters.

Ms. Nair, who recently authored an article for the New York Law Journal on the EDTPA, 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 ASA article on page 6 and the EDTPA article on page 24 of AHRMNY's Risk Management Journal here. Learn more about AHRMNY here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.