EDTPA Immunity Requires a Case-Specific Nexus Between COVID-19 Response and the Alleged Malpractice (Not Mere Pandemic-Era Constraints)
1. Introduction
Back v Facey (2026 NY Slip Op 03858) is a Third Department decision addressing the scope of immunity under
the Emergency or Disaster Treatment Protection Act (EDTPA; Public Health Law former §§ 3080-3082)
for medical care delivered during the early COVID-19 emergency.
The plaintiffs, Abraham Back and his spouse (derivatively), sued surgeon Dalkeith G. Facey
and related defendants for medical malpractice after a laparoscopic cholecystectomy allegedly resulted in surgical clips obstructing
the common bile duct, leading to obstructive jaundice and subsequent open bile duct reconstruction. Defendants sought
summary judgment, arguing they were immune under EDTPA because Back’s care was “impacted” by COVID-19 conditions,
including operating-room conversions and the unavailability of robotic surgery.
The central issue on appeal was not whether COVID-19 profoundly altered hospital operations (it did), but whether defendants
proved—at the summary judgment stage—a causal, case-specific connection between those pandemic conditions and the
particular alleged negligence: (i) the asserted surgical misidentification/clipping error and (ii) the asserted postoperative misdiagnosis.
2. Summary of the Opinion
The Third Department affirmed Supreme Court’s denial of defendants’ motion for summary judgment.
Although defendants offered evidence of extensive pandemic-driven operational changes (OR conversions, understaffing, delays, isolation protocols)
and showed that robotic surgery was unavailable, they failed to make a prima facie showing that the alleged malpractice
(the operative clipping error and subsequent failure to diagnose bile duct injury) was “impacted by decisions or activities” responding to COVID-19
within the meaning of Public Health Law former § 3082 (1) (b).
The court emphasized that EDTPA immunity must be strictly construed and requires a fact-intensive inquiry.
General evidence of pandemic-era strain and delays did not establish that the surgical error or postoperative misdiagnosis was impacted by COVID-19 response.
Because defendants failed to meet their initial burden, the court did not reach plaintiffs’ arguments that an exception to immunity applied
(e.g., gross negligence/reckless misconduct).
3. Analysis
A. Precedents Cited
The opinion situates the Third Department within a growing body of Appellate Division EDTPA jurisprudence, borrowing standards and analytical framing
from other Departments while applying them to a summary judgment record.
Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc.
The court uses Damon v Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 AD3d 618 (2d Dept 2024),
to set out EDTPA’s three-part test for immunity: (1) services provided pursuant to a COVID-19 emergency rule/otherwise in accordance with law,
(2) the act or omission was impacted by COVID-19 response decisions/activities supporting state directives, and (3) services were provided in good faith.
This framework anchors the court’s analysis and clarifies that the dispute here centered on the second requirement—“impacted by” COVID-19 response.
Holder v Jacob
Holder v Jacob, 231 AD3d 78 (1st Dept 2024), supplies two key principles adopted and applied here:
(i) EDTPA does not require treatment to be impacted in any particular direction (“positively, negatively, or otherwise”); but
(ii) because EDTPA is an immunity statute, it must be strictly construed, and the “impact” inquiry is fact-intensive.
Critically, the Third Department echoes Holder’s insistence on a nexus between the alleged negligence and pandemic response:
systemwide burdens (staff shortages, high census, operational disruptions) do not automatically establish that a specific alleged lapse
(there, fall prevention and post-fall diagnosis; here, surgical clipping and postoperative diagnosis) was actually impacted by those burdens.
Sapienza v Tromba
Sapienza v Tromba, 241 AD3d 722 (2d Dept 2025), reinforces that EDTPA does not require a showing that a plaintiff’s treatment was uniquely impacted
compared to others or that a particular “material” aspect was impacted. But it also supports the proposition that the movant must still
demonstrate that the relevant care was, in fact, impacted. The Third Department relies on Sapienza both for the breadth of “impact”
and for the failure-of-proof conclusion: even a broad concept of “impact” requires evidence connecting COVID-19 response to the allegedly negligent act/omission.
Thomas v Concourse Rehabilitation & Nursing Ctr., Inc.
Thomas v Concourse Rehabilitation & Nursing Ctr., Inc., 244 AD3d 552 (1st Dept 2025), is cited for the proposition that because EDTPA confers immunity,
it must be strictly construed and demands a fact-intensive inquiry. It also exemplifies the “nexus” requirement: even where COVID-19 is present in the clinical picture,
defendants must show how pandemic response affected the alleged negligent care related to other conditions.
Lubrano-Birken v Ellis Hosp.
Lubrano-Birken v Ellis Hosp., 229 AD3d 873 (3d Dept 2024), provides the Third Department’s standard summary judgment articulation:
evidence must be viewed in the light most favorable to the nonmovant; reasonable inferences go to the nonmovant; no credibility determinations;
summary judgment is appropriate only where there is no doubt as to the absence of triable issues.
This is important because much EDTPA litigation arose on motions to dismiss; Back applies EDTPA in a posture requiring evidentiary proof.
Damiani v WSNCH N., Inc.
Damiani v WSNCH N., Inc., 244 AD3d 1059 (2d Dept 2025), is cited for the timing significance of EDTPA’s definition of “health care services”
and the fact that this case is governed by the initial, broader definition in effect before the August 3, 2020 narrowing amendment.
Even with that broader definition, the Third Department holds the movant must still prove the required “impact” nexus to the alleged negligence.
Jackson v BronxCare Health Sys.
Jackson v BronxCare Health Sys., 236 AD3d 594 (1st Dept 2025), is used as another illustration of insufficient proof:
staffing shortages and a COVID diagnosis do not automatically establish that the pandemic impacted the particular alleged failure
(there, providing a walking device to prevent a fall). The Third Department aligns its reasoning with Jackson:
broad pandemic disruption is not self-proving as to the specific negligence claimed.
B. Legal Reasoning
The court’s reasoning turns on the second statutory requirement under Public Health Law former § 3082 (1) (b):
whether the act or omission was “impacted by” COVID-19 response decisions/activities supporting state directives.
1) Systemwide pandemic conditions are not enough without linkage to the alleged malpractice
Defendants presented proof of extensive COVID-era operational changes: conversion of operating rooms to surge beds, understaffing,
limited anesthesia availability, delays, and isolation protocols pending COVID testing. The court accepted that these conditions existed
and likely affected hospital operations generally, including delays.
But the court characterized plaintiffs’ claims as primarily alleging a surgical error (misidentification of biliary anatomy/placement of clips obstructing
the common bile duct) and a postoperative misdiagnosis (suspecting a stone despite imaging and failing to recognize clip obstruction),
“and not a delay in treatment.” As a result, pandemic-driven delays and operational constraints were deemed to have “no bearing on the treatment rendered”
for purposes of proving EDTPA impact on the alleged negligent acts.
2) “Robotic unavailable, laparoscopic used” required proof of clinical impact—not preference
Defendants’ more targeted “impact” argument was that robotic surgery was unavailable due to COVID-driven OR conversions and personnel limitations,
forcing Facey to perform the cholecystectomy laparoscopically.
The court held this was still insufficient because the proof did not connect the modality change to the alleged negligence.
Facey testified he preferred robotic surgery because of “better instrumentation and better visualization,” but also testified that laparoscopic or robotic “would be fine,”
that he was trained in laparoscopy, performed it frequently, and that COVID did not change his method in this laparoscopic case.
The record also included operative and deposition evidence undermining a claim of modality-driven impairment:
Facey testified he could “clearly” see the cystic artery, the anatomy was “clearly defined,” there was no need for intraoperative imaging,
no need to convert to an open procedure for visibility, and he took necessary steps to establish the “critical view of safety.”
With no evidence that visualization/instrumentation limitations actually affected identification of anatomy or clip placement in this surgery,
the defendants did not demonstrate the required “impact” nexus.
3) Summary judgment posture heightens the movant’s evidentiary burden
While noting that “nearly all other appellate-level decisions” addressed EDTPA in CPLR 3211 (a) (7) motions,
the court emphasized that even under the pre-amendment broad definition of “health care services,” the movant must establish a nexus
between COVID response and the alleged negligence. On summary judgment, that means competent proof—not generalities.
Because defendants failed to establish a prima facie entitlement to judgment as a matter of law, the court declined to consider
plaintiffs’ alternative arguments (including the statutory carve-out for gross negligence or reckless misconduct under Public Health Law former § 3082 [2]).
C. Impact
Back v Facey adds meaningful clarification to EDTPA immunity practice, particularly in medical-malpractice cases involving alleged
technical surgical error rather than resource-triage decisions or delay-based claims.
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Nexus requirement sharpened for surgical malpractice: Evidence that COVID changed hospital operations or reduced access to preferred technology
will not, by itself, establish EDTPA immunity. Defendants must show how the pandemic response affected the specific surgical conduct alleged to be negligent
(e.g., altered staffing in the OR, modified protocols affecting intraoperative imaging decisions, reduced assistance impacting exposure/identification, etc.).
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“Preference” is not “impact”: A surgeon’s generalized preference for a modality (robotic vs laparoscopic) does not prove that the chosen modality
was clinically compromised in a way that impacted the alleged negligence—especially where the surgeon testifies the method did not change and visibility was clear.
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Procedural posture matters: As EDTPA cases move from pleadings to summary judgment, courts will demand record evidence tying COVID response
to the alleged deviation. Defendants seeking early dismissal may survive on pleaded linkage in some cases, but summary judgment requires proof.
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Strict construction remains decisive: The opinion reinforces that EDTPA, as an immunity statute, is not applied expansively by default.
Courts will closely examine whether the immunity elements are actually proven, not merely asserted against the backdrop of the pandemic.
4. Complex Concepts Simplified
EDTPA “immunity”
EDTPA can shield healthcare providers from civil liability for harm caused by acts or omissions in arranging/providing health care services during the COVID emergency,
but only if statutory requirements are met—especially that the act/omission was “impacted” by COVID-response decisions and that services were in good faith.
Immunity is not automatic simply because care occurred during COVID.
“Impacted by” (Public Health Law former § 3082 (1) (b))
“Impacted” is broad and does not require proof that COVID made care worse (or better). However, a provider must still show that COVID-response decisions
actually affected the act/omission being sued over. General pandemic disruption is not enough without linkage to the alleged negligent conduct.
Summary judgment and “prima facie” burden
On summary judgment, the moving party must first make a prima facie showing that it is entitled to judgment as a matter of law based on evidence.
If the movant fails, the court denies the motion without even considering the opponent’s evidence.
“Strictly construed” immunity statutes
When a statute provides immunity (a special protection from liability), courts apply it narrowly and require the party seeking immunity to prove
they clearly fall within the statute’s terms.
“Critical view of safety” (surgical concept)
In gallbladder surgery, the “critical view of safety” is a technique to confirm the correct identification of key structures (like the cystic duct and artery)
before clipping/cutting—aimed at preventing bile duct injuries. In this case, the surgeon testified he achieved it; that testimony undercut the claim
that pandemic-related visualization limitations impacted identification.
5. Conclusion
Back v Facey stands for a practical, increasingly central EDTPA principle: even under the statute’s broad early-pandemic scope,
a provider seeking immunity must prove a specific nexus between COVID-19 response decisions and the particular alleged malpractice.
Evidence of widespread pandemic disruption, staffing strain, delays, or even unavailability of preferred technology will not suffice unless it is tied—factually and clinically—
to the negligent act or omission at issue. For future EDTPA litigation, the decision underscores that immunity turns on proof of impact, not the mere presence of COVID-era conditions.