Walker v. Usorov

The following e-filed documents, listed by NYSCEF document numbers 50-101, 128-134, and 142-164 (Motion Seq. No. 003) and 104-127, 135-141, and 166-169 (Motion Seq. No. 004) were read on these motions to dismiss the complaint pursuant to CPLR 3211(a)(7) and CPLR 3211(a)(2) on the ground that defendants are immune from suit and liability under the Emergency or Disaster Treatment Protection Act and the Federal Public Readiness and Emergency Preparedness Act, 42 U.S.C. §247d-6d, et seq DECISION AND ORDER Upon the foregoing documents, the motions of defendants Alexander Usorov, M.D., Vaithilingam Arulthasan, M.D., Obi Valentine, M.D., Roland Ngum, M.D., Annette Netsama, M.D., and Richmond University Medical Center (hereinafter, collectively, “RUMC”) (Mot. Seq. No. 003), and defendant, Jessie Saverimuttu, M.D., (Mot. Seq. No. 004) to dismiss plaintiff’s complaint pursuant to CPLR 3211(a)(2), and (7) are granted and the complaint is dismissed. Plaintiff commenced this action against RUMC following her late husband’s April 3, 2020, death from COVID-19. It is undisputed that during the height of the pandemic, 62-year-old Harry Walker was hospitalized twice for COVID-19: from March 23, 2020, through March 27, 2020, and from March 29, 2020, through April 3, 2020. The complaint asserts causes of action for, inter alia, “grossly negligent medical malpractice, reckless misconduct”, negligence, wrongful death, and the lack of informed consent (see NYSCEF Doc. No. 1)¹. In Motion Seq. No. 003, RUMC seeks dismissal of the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), arguing that it is immune from liability under the Emergency or Disaster Treatment Protection Act, N.Y. Pub. Health Law §3080-3082 [repealed by L 2021, ch 96, §1; hereinafter "EDTPA"], the Federal Public Readiness and Emergency Preparedness Act, 42 U.S.C. §247d-6d, et seq. (hereinafter “PREP Act”) and because it is preempted by federal law pursuant to CPLR 3212(a)(2). In Motion Seq. No. 004, infectious disease physician Dr. Saverimuttu moves to dismiss the complaint on the grounds that she too is immune from liability under both the EDTPA and the PREP Act². Plaintiff opposes both motions, arguing, inter alia, that dismissal is premature because no discovery has been conducted, and that: (1) the EDTPA was retroactively repealed on April 6, 2021; (2) notwithstanding repeal, plaintiff’s allegations of gross negligence, willful misconduct, or intentional infliction of harm neutralize the defendants’ immunity, and (3) the PREP Act is inapplicable because plaintiff’s allegations concern nonfeasance (i.e., the defendants’ failures to act). Plaintiff maintains that her late husband met the criteria for immediate admission to the ICU on March 29, 2020, and that contrary to Advanced Cardiac Life Support protocols, he was not given CPR when found without a pulse shortly before his death on April 3, 2020. FACTUAL BACKGROUND 1. FIRST HOSPITALIZATION³ On the evening of March 23, 2020, the plaintiff’s decedent presented to RUMC’s emergency department (“ED”) by ambulance with complaints of 3-days of bilateral lower extremity weakness, mild cough, and a fever of 100.6. He had a medical history significant for diabetes, Barrett’s esophagus, hypertension, multiple transient ischemic attacks, and a stroke. At 1:00 a.m. on March 24, 2020, Mr. Walker was given Vancomycin and Aztreonam in the emergency room, and a Covid test was performed at 1:30 a.m. By 3:47 a.m. an ED physician entered an order admitting him to the medical floor under defendant, Dr. Usorov’s service, with an impression of fever, weakness, and to rule out sepsis and COVID-19. No hospital room was available because of lack of beds, lack of staffing, and lack of resources due to the surge of the COVID virus, and plaintiff’s decedent remained in the ED for another 24 hours. The COVID-19 test returned positive at 4:23 p.m., and orders were immediately placed for COVID-19 countermeasures including hydroxychloroquine and azithromycin. At 10:27 p.m. on March 24, 2020, Mr. Walker was transferred to the sixth floor. At 1:25 p.m. on March 25th, nursing found Mr. Walker’s breathing sounds to be labored, and he was suffering tachycardia. A nursing respiratory assessment was performed that revealed shortness of beath with exertion, difficulty clearing secretions, and labored respiratory effort. Mr. Walker was administered supplemental oxygen, and his oxygen saturation was 98 percent on nasal cannula. At 6:08 p.m. Dr. Arulthasan examined Mr. Walker and noted bilateral lung crackles due to COVID-19. The plan was for him to be seen by infectious disease. Infectious disease specialist Dr. Saverimuttu examined decedent at 8:21 p.m. on March 25th. The doctor recommended continuing hydroxychloroquine, 200 mg every twelve hours for three days, discontinuing Azithromycin, and starting Minocycline, 100 mg every twelve hours. Her assessment was Covid pneumonia, and the plan was to monitor oxygen saturation, WBC, and renal function. At 10:44 p.m. Mr. Walker’s oxygen saturation was 94 percent on nasal cannula, but he continued to suffer from shortness of breath with exertion. Dr. Arulthasan examined Mr. Walker at 5:10 p.m. on March 26, 2020. The prognosis was guarded, and the plan was for discharge home with outpatient PT, as plaintiff’s decedent had completed his three-day course of Hydroxychloroquine and was hemodynamically stable. At 12:30 p.m. on March 27, 2020, Dr. Saverimuttu ordered that Mr. Walker be kept on supplemental oxygen, nasal canula, an eight-day course of Minocycline and a fourteen-day course of Vitamin C for COVID-19. Oxygen saturation was to be monitored on room air, and if it was above 93 percent, then Mr. Walker could be discharged home with strict instructions to return to the ED if his cough or shortness of breath worsened. At 5:24 p.m. Mr. Walker was again examined by Dr. Arulthasan, who found Mr. Walker clinically stable to be discharged: “[b]ecause of COVID-19, the Governor’s Executive Orders, and numerous CDC and New York Department of Health public health policies addressing the unprecedented surge of deathly ill patients, it was determined that this patient was safer at home than in the hospital that was at capacity with COVID-19 patients” (see Affirmation of Vaithiling Arulthasan, M.D.; NYSCEF Doc. No. 54, para. 31). 2. SECOND HOSPITALIZATION On the afternoon of March 29, 2020, Mr. Walker returned to RUMC via ambulance for generalized weakness, exertional dyspnea, restlessness, and a persisting non-productive cough. He was seen in the ED at 1:19 p.m. and had an oxygen saturation level of 84 percent on room air. As a result of Covid symptoms, he was started on a non-rebreather mask with supplemental oxygen, and his oxygen saturation level improved to 94 percent . A chest x-ray revealed bilateral pneumonia over the lower lobes which, when compared to the prior March 23rd x-ray, showed patchy infiltrates of the bilateral lungs. Consistent with the prevailing COVID-19 protocols at the time, the decision was made to start Azithromycin and Hydroxychloroquine, and a nasal canula. Mr. Walker remained in the ED until a bed opened, and Dr. Saverimuttu recommended that Minocycline be continued, along with ascorbic acid, zinc, and guaifenesin. The plan was to monitor Mr. Walker’s WBC and renal function. Dr. Saverimuttu examined plaintiff’s decedent at 10:57 p.m. on March 30th for persisting COVID-19 pneumonia with shortness of breath and noted a guarded prognosis. Mr. Walker remained in the ED until 12:14 a.m. on March 31, 2020, at which time a bed became available on the fourth floor where many of the COVID-19 patients were admitted. Residents were not permitted to examine patients because of isolation protocols, and to preserve PPE. Mr. Walker was ultimately examined by Dr. Shehaj, a cardiologist practicing outside of specialty due to surge guidelines, who noted that Mr. Walker was on the covered countermeasure non-rebreather mask with an oxygen saturation of 96 percent . A chest x-ray showed persistent bilateral pneumonic infiltrates consistent with COVID-19 pneumonia. Nursing performed an Emergency Surge Admission Assessment (in compliance with federal and NYS Department of Health Guidelines) which indicated normal breathing effort and symmetrical chest expansion, along with an oxygen saturation of 90 percent with the non-rebreather mask. Mr. Walker was continuously monitored for signs and symptoms of hypoxia. At 4:49 p.m. on March 31, 2020, an order was placed for Mr. Walker to receive supplemental oxygen via CPAP, and a chest x-ray was taken to verify placement of a feeding tube. At 5:09 p.m. an order was placed for supplemental oxygen via BiPAP. A respiratory assessment conducted at 6:51 p.m. charted oxygen saturation of 90 percent on the non-rebreather mask, which improved to 97 percent on a BiPAP device. Plaintiff’s decedent continued to require supplemental oxygen as of 1:04 p.m. on April 1, 2020. When a VentiMask was attempted, his oxygen saturation decreased to 50 percent, and the decision was made to continue the BiPAP countermeasure. At 5:55 p.m. Dr. Saverimuttu found Mr. Walker to be short of breath and lethargic. He was still on Minocycline and was now considered high risk for intubation. His temperature spiked to 102.4 that evening. Dr. Rotatori, a cardiologist also practicing outside of his specialty, found Mr. Walker to be “less combative” at 1:08 p.m. on April 2, 2020. Dr. Saverimuttu examined Mr. Walker at 11:34 p.m. on April 2, 2020, and noted an increasing white blood cell count. The plan was to continue with Minocycline and to start additional antibiotics Meropenem and Vancomycin. At 4:15 a.m. on April 3, 2020, Mr. Walker was found to be hemodynamically stable with oxygen saturations 95 percent while on CPAP, but his white blood cell count was trending upward. At 7:49 p.m. he was found unresponsive, pulseless, and apneic in bed. Advanced Life Support was commenced, and Mr. Walker was given 1 mg amp of Epinephrine. According to the record, CPR including chest compressions were not performed, due to aerosolization from COVID-19⁴. Mr. Walker was pronounced dead at 7:54 p.m. by defendant Roland Ngum, M.D. A death certificate completed by Dr. Ngum cites the cause of death as cardiopulmonary arrest because of pneumonia, which was due to or because of COVID-19 (see NYSCEF Doc. No. 108). APPLICABLE LAW AND ANALYSIS 1. CPLR 3211(a)(7) In determining a motion to dismiss under CPLR 3211(a)(7), the pleadings are afforded a liberal construction, the facts as alleged in the complaint are accepted as true, and the plaintiff is afforded every favorable inference. A court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7). If the court considers such evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim (Mera v. New York City Health and Hospitals Corporation, 220 AD3d 668 [2d Dept. 2023]; [internal quotations and citations omitted]). 2. EDTPA On April 6, 2020, the New York legislature passed the Emergency or Disaster Treatment Protection Act (“EDTPA”) which provided, with certain exceptions, that a health care facility “shall have immunity from 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”, as long as three elements are met: 1. 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; 2. 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 facilities 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 3. 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 L 2020, ch. 56, §1 [Part GGG]). The health care services covered by this immunity provision include those related to the diagnosis, prevention, or treatment of COVID-19; the assessment or care of an individual with a confirmed or suspected case of COVID-19; and the care of any other individual who presented at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration (see Mera v. New York City Health and Hospitals Corporation, 220 AD3d 668, citing Public Health Law former §3081[5]). EDTPA immunity does not apply if the harm or damages were caused by an act or omission “constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm” (see Public Health Law former §3082[2]). “To constitute gross negligence, a party’s conduct must ‘smack of intentional wrongdoing’ or ‘evince a reckless indifference to the rights of others’ (Ryan v. IM Kapco, Inc., 88 AD3d 682, 683 [2d Dept. 2011] quoting Sommer v. Federal Signal Corp., 79 NY2d 540, 544 [1992] [internal quotation marks omitted]). 3. PREP Act The PREP Act, activated on March 17, 2020, by the Secretary of Health and Human Services, provides immunity from liability (except for willful misconduct) to “covered persons” for claims of “loss caused by, arising out of, relating to, or resulting from the administration or use by an individual of a covered countermeasure” to threats to health constituting a public emergency. Covered countermeasures include any “antiviral, drug, biologic, diagnostic, device or vaccine used to treat, diagnose, cure, prevent or mitigate COVID-19.” The sole exception to immunity under the PREP Act is for death or serious physical injury proximately caused by willful misconduct, which is defined as “an act or omission that is taken intentionally to achieve a wrongful purpose, knowingly without legal or factual justification, and in disregard of a known or obvious risk” (42 U.S.C. §247d-6d[d][1]). As previously indicated the defendants’ motions to dismiss the complaint pursuant to CPLR 3211(a)(7) are granted. Plaintiff’s lawsuit is premised on treatment or failure to treat COVID-19, the very scenario for which the EDTPA and PREP Act were enacted. The EDTPA requires dismissal at the pleadings stage where, as here, the alleged negligence occurs while treating COVID-19, the patient’s treatment was impacted by RUMC’s decisions and activities in response to the COVID-19 outbreak and in support of the state’s directives, and RUMC was providing health care services in good faith and in accordance with law. The facts of this case provide the very scenario contemplated by the legislature when it enacted the EDTPA and the PREP Act. Much like the recent Second Department case of Mera v. New York City Health and Hospitals Corporation, 220 AD3d 668 [2d Dept. 2023]), Motion Seq. No. 003 is supported by evidentiary material via the affirmations of three treating physicians (Alexander Usorov, M.D., Valentine Obi, M.D., and Vaithilingam Arulthasan, M.D., [see NYSCEF Doc. Nos. 52, 53, 54]), who detail the care rendered to plaintiff’s decedent and attest unequivocally that his care and treatment was “unavoidably impacted by the decisions/activities of RUMC and staff in response to the COVID-19 outbreak and in support of the federal and New York State directives to combat this deadly disease” (id.). Plaintiff does not contest the accuracy of these affirmations, or the accuracy of the certified medical records attached to the motion, but simply maintains that RUMC is subject to liability because of “gross negligence” (see paragraphs 28, 29, 30 et seq. of the complaint), an exception to the immunity afforded by the EDTPA. Plaintiff’s bald assertions of gross negligence and willful conduct with no factual specificity are insufficient to sustain this complaint. As found by the Mera court: “[t]he affirmation of the attending physician who treated the decedent at the hospital, submitted by the defendants in support of the motion, established that the defendants were entitled to immunity under the EDTPA. As the complaint makes no allegations that the defendants’ acts or omissions constituted willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm, none of the exceptions to the immunity provisions of the EDTPA apply (id.,220 AD3d 668 at 670). “Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery” (Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]). Accordingly, RUMC’s motion to dismiss the complaint must be granted in its entirety. It is noted that plaintiff’s argument that the repeal of the EDTPA was retroactive is likewise unavailing. The Fourth Department, the only appellate court to rule on this issue, recently held that “the repeal of the EDTPA does not apply retroactively” (Ruth v. Elderwood at Amherst, 209 AD3d 1281 [4th Dept. 2022]). “Stare decisis requires trial courts to follow precedents set by the Appellate Division of another department until the Court of Appeals or this court pronounces a contrary rule” (see Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663 [2d Dept. 1984]). Accordingly, this Court finds that the repeal of the EDTPA was not retroactive, and that the RUMC defendants remain immune from suit and liability under the particular facts of this case. With respect to the issues raised in Motion Seq. No. 004, it is undisputed that Dr. Saverimuttu is a “covered person” under the PREP Act, who administered and used covered countermeasures as part of the care and treatment of Mr. Walker. Plaintiff’s argument that her claims fall outside of the PREP Act because the defendants failed to act is without merit. The PREP Act does not contain language that the “administration of” covered countermeasures refers to inaction, including “failure to properly evaluate, diagnose and treat respiratory distress” and “failure to administer CPR [or] other advanced cardiovascular life support protocols” (see NYSCEF Doc. No. 1). Plaintiff’s remaining arguments in opposition to the motions are deemed unpersuasive. Accordingly, it is ORDERED that the motion of the defendants Alexander Usorov, M.D., Vaithilingam Arulthasan, M.D., Obi Valentine, M.D., Roland Ngum, M.D., Annette Netsama, M.D., and Richmond University Medical Center, to dismiss plaintiff’s complaint pursuant to CPLR 3211(a)(7) is granted; and it is further ORDERED that the motion of the defendant, Jessie Saverimuttu, M.D., to dismiss plaintiff’s complaint pursuant to CPLR 3211(a)(2) and (a)(7) is granted; and it is further ORDERED that the Clerk enter judgment in favor of defendants dismissing the complaint with prejudice. Dated: December 13, 2023