Encounter‑Specific EDTPA Immunity: Sapienza v. Tromba Clarifies the “Impact” Requirement and Reaffirms Non‑Retroactivity of EDTPA Repeal

Introduction

Sapienza v. Tromba (2025 NY Slip Op 04672) is a significant Appellate Division, Second Department decision refining how New York courts assess immunity under the Emergency or Disaster Treatment Protection Act (EDTPA) for medical malpractice claims arising during the early COVID‑19 pandemic.

The plaintiff, Linda Sapienza, alleged medical malpractice against gastroenterologist Joseph Tromba and Long Island Gastroenterology, P.C., relating to care provided on March 16, 2020 (an in‑office visit), and follow‑up telephone management on April 1, April 3, and April 6, 2020. The defendants sought summary judgment on the basis of EDTPA immunity. The Supreme Court, Queens County, granted the motion in full. On appeal, the Second Department modified: it reinstated the portion of the malpractice claims stemming from the March 16 in‑office encounter, but affirmed EDTPA immunity for the April telephone encounters.

The decision both reaffirms that the 2021 repeal of the EDTPA is not retroactive and, critically, clarifies that EDTPA immunity turns on a date‑ and act‑specific showing that the treatment was “impacted” by COVID‑19‑related decisions or activities in support of State directives. The mere existence of the pandemic does not automatically cloak all care during that period with immunity.

Summary of the Judgment

• EDTPA repeal non‑retroactivity confirmed: The court reiterates that the April 2021 repeal of the EDTPA does not apply retroactively to conduct occurring during the statute’s effective period.
• Three‑part EDTPA test: The court restates the statute’s requirements: services must be arranged or provided pursuant to a COVID‑19 emergency rule or applicable law; the act or omission must be “impacted” by COVID‑19‑related decisions or activities in support of State directives; and the services must be provided in good faith.
• “Impact” clarified: Treatment must be shown to have been impacted by pandemic response; unique or particularized impact is not required, but some evidentiary showing is necessary.
• Partial immunity, encounter by encounter:
  • March 16, 2020 in‑office visit: Defendants failed, prima facie, to show that the treatment plan that day was impacted by COVID‑19 directives; immunity denied and malpractice claims for that date are reinstated.
  • April 1, 3, and 6, 2020 telephone care: Defendants established that pandemic conditions (office closure under emergency orders, telephonic management, practical limitations on imaging access, and the patient’s COVID‑related reticence to leave home) impacted treatment; immunity granted for these encounters.
• Procedural posture: Because defendants did not make a prima facie showing of entitlement to immunity as to March 16, summary judgment on that portion had to be denied regardless of the plaintiff’s opposition.

Detailed Analysis

The EDTPA Framework

The EDTPA (former Public Health Law §§ 3080‑3082) initially shielded health care providers and facilities from civil and criminal liability for harm alleged to arise from acts or omissions in arranging or providing health care services during the COVID‑19 emergency, provided three requirements were met:

1. Services were arranged for or provided pursuant to a COVID‑19 emergency rule or in accordance with applicable law,
2. The act or omission was impacted by decisions or activities undertaken in response to or as a result of the COVID‑19 outbreak and in support of State directives, and
3. The services were provided in good faith.

As prior authority explains, the statute does not require that the impact be unique to the plaintiff, or that any particular aspect of the treatment be affected—only that the treatment be impacted in some way by COVID‑related response efforts and State directives.

Encounter‑by‑Encounter “Impact” and Partial Immunity

Sapienza is one of the clearest appellate statements that EDTPA immunity must be evaluated on an act‑ and date‑specific basis. The Second Department effectively “segments” the malpractice claims:

• On March 16, 2020, the office remained open; Dr. Tromba saw the plaintiff in person and performed a physical examination. The record, viewed favorably to the plaintiff, contained no indication that COVID‑19 influenced the creation of the treatment plan during this in‑person visit. Because the defendants did not make a prima facie showing of the EDTPA’s “impact” element for that date, summary judgment was improper as to those allegations.
• For April 1, 3, and 6, 2020, the defendants showed that the office was closed pursuant to the emergency declaration, the provider managed patients “as well as [he could] without seeing them physically,” outpatient imaging was practically available only via an emergency room, and the plaintiff—who had COPD and a household member with emphysema—was reluctant to leave home “in the middle of COVID.” This evidentiary record satisfied the “impact” prong, and the telephonic encounters were therefore immunized, assuming good faith (which was unrebutted).

This granular approach rejects any blanket assumption that all care during spring 2020 was per se immunized; instead, courts will parse each alleged act or omission to determine whether it was actually impacted by COVID‑related response measures.

Precedents Cited and Their Influence

• Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 AD3d 618: Cited for two propositions: (1) the EDTPA repeal is not retroactive, and (2) the statute’s three‑part immunity test, including the “impact” requirement, governs. Sapienza expressly quotes Damon’s summary of the statute and relies on Damon to reject the plaintiff’s retroactivity argument.
• Hasan v. Terrace Acquisitions II, LLC, 224 AD3d 475; Whitehead v. Pine Haven Operating LLC, 222 AD3d 104; Ruth v. Elderwood at Amherst, 209 AD3d 1281: These cases likewise reject retroactive application of the EDTPA repeal. The court consolidates this line to foreclose the plaintiff’s position on repeal retroactivity.
• Holder v. Jacob, 231 AD3d 78: Used to elucidate “impact.” Holder explains that § 3082 did not qualify how treatment must be affected and did not require unique impact or specify which aspect of care must be affected. Sapienza relies on Holder to define the breadth of “impact,” then distinguishes Holder procedurally: in Holder, at the pleading stage (CPLR 3211), defendants had not conclusively established impact; here, depositions and records provided the necessary proof for the April encounters.
• Crampton v. Garnet Health, 73 Misc 3d 543 (Sup Ct, Orange County): Trial‑level authority recognizing a broad but still evidence‑based understanding of “impact.” Sapienza cites Crampton approvingly to emphasize that EDTPA shields departures from the standard of care where the statute’s prerequisites are satisfied.
• Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824; Caggiano v. Cooling, 92 AD3d 634: General summary judgment standards—view evidence in the light most favorable to the non‑movant—which the court applies in assessing whether defendants met their prima facie burden for March 16.
• Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851: The classic principle that if the movant fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opponent’s papers. This underpins the reinstatement of March 16 claims.
• Lara v. S & J Operational, LLC, 237 AD3d 1186; Mera v. New York City Health & Hosps. Corp., 220 AD3d 668: Cited to support the grant of immunity where evidentiary showings establish the EDTPA elements for pandemic‑impacted care.

The Court’s Legal Reasoning

1. Retroactivity: Applying Damon, Hasan, Whitehead, and Ruth, the court quickly rejects the argument that the 2021 repeal of the EDTPA retroactively eliminates immunity for conduct that occurred in March and April 2020.
2. EDTPA Elements: The court restates the statute’s three conditions, emphasizing that “impact” does not require unique or material impact; it simply must be present and tied to COVID‑response actions in support of State directives (e.g., office closure, telehealth, triage, resource limits).
3. Burden on Summary Judgment:
   • March 16, 2020: Defendants, as movants, had to make a prima facie showing that the in‑office treatment was impacted by COVID‑response decisions. The record showed the office was open; the physician conducted a physical examination; and nothing in the record linked the treatment plan that day to State directives or pandemic constraints. Therefore, the prima facie burden was not met; under Winegrad, denial was required regardless of the plaintiff’s opposition.
   • April 1, 3, and 6, 2020: Through deposition testimony and records, defendants showed office closure pursuant to emergency declarations, reliance on telephone care, the practical location for an X‑ray being the ER, and the plaintiff’s COVID‑related reticence to leave home—all in support of State directives. These facts satisfied the “impact” element. The plaintiff’s opposing expert focused on departures from the standard of care, but EDTPA shields such departures when the prerequisites are met. The plaintiff did not raise a triable issue that the office was in fact open, that outpatient imaging was available, or that the care was not impacted. Immunity therefore attached for these dates.

Impact and Forward‑Looking Consequences

• Segmented EDTPA analysis: Sapienza confirms that EDTPA immunity is not all‑or‑nothing across the continuum of care. Courts will parse allegations by date and act, granting immunity where evidence of COVID‑related impact exists, while allowing non‑impacted episodes to proceed.
• Evidentiary expectations: Defendants seeking EDTPA immunity should marshal encounter‑specific proof: office closure policies, telehealth implementation, contemporaneous directives, resource constraints, and how those factors influenced decisions (e.g., deferral of imaging, ER channeling). Plaintiffs opposing immunity must introduce evidence that the act was not impacted (e.g., that outpatient services were available, that the office was open, or that the provider’s choices were unrelated to directives), not merely that the care was negligent.
• Telemedicine and triage protected: The opinion reinforces that good‑faith triage and telephonic care carried out due to closures and State guidance will generally satisfy EDTPA’s “impact” prong.
• Pre‑closure in‑person visits are scrutinized: Routine, in‑office encounters before closures or without documented COVID‑related constraints may fall outside EDTPA’s reach absent an evidentiary tie to pandemic response.
• Pleading and motion practice: Bills of particulars and motions should delineate allegations by date. On summary judgment, movants must meet their prima facie burden for each encounter; opponents should target the “impact” and “good faith” elements with concrete facts.

Complex Concepts Simplified

• EDTPA Immunity: A statutory shield that, during its effective period, protected providers from liability for acts or omissions in arranging/providing care when three conditions were met: COVID‑rule compliance, COVID‑related “impact” in support of State directives, and good faith. It does not excuse negligence if the prerequisites are not met; but if met, even departures from the standard of care are immunized (subject to statutory exceptions, such as willful or intentional misconduct).
• “Impacted” by COVID‑related decisions/activities: A causal tie between the pandemic response and the care decision (e.g., office closure, telehealth, deferred diagnostics, ER‑only availability). The law does not require that the impact be unique to the patient or that a specific aspect be materially affected; there must be some evidence of impact.
• Non‑retroactivity: When a statute is repealed without clear retroactive language, courts generally do not apply the change to past conduct. The EDTPA’s 2021 repeal did not retroactively strip immunity for care rendered while the statute was in force.
• Summary judgment—prima facie burden: The moving party must first submit evidence establishing its entitlement to judgment as a matter of law. If it fails, the motion is denied regardless of the opponent’s papers. If it succeeds, the burden shifts to the non‑movant to raise triable factual disputes.

Practice Notes

• For defendants:
  • Document pandemic‑driven constraints contemporaneously (closure notices, staffing logs, triage protocols, telehealth policies, directive memoranda).
  • Tie each alleged act/omission to a specific COVID‑related decision or resource limitation; avoid relying on generalized references to “the pandemic.”
  • On summary judgment, present deposition testimony and records that show the nexus between State directives and your treatment decisions for each date.
• For plaintiffs:
  • Segment allegations by encounter date (pre‑closure in‑person visits versus post‑closure telehealth) and tailor proof accordingly.
  • To defeat EDTPA immunity, focus on breaking the “impact” link (e.g., outpatient services were available; the provider’s office was open; the decision was unrelated to State directives) or on the “good faith” element, where supported.
  • Expert affirmations should address EDTPA elements, not solely departures from the standard of care.

Conclusion

Sapienza v. Tromba establishes two pivotal points in New York’s evolving EDTPA jurisprudence. First, it definitively reaffirms that the EDTPA repeal is not retroactive. Second—and more consequential for day‑to‑day litigation—it confirms that EDTPA immunity is encounter‑specific: defendants must prove that each act or omission was impacted by COVID‑related decisions or activities in support of State directives. In‑person care rendered before closures, without evidence of pandemic‑related impact, will not be summarily immunized. By contrast, telephonic management and triage necessitated by office closure and resource limitations, undertaken in good faith, are likely to qualify.

The decision sharpens the evidentiary burdens for both sides. Defendants must present concrete proof of impact for each date of service; plaintiffs must meet that evidence with specific facts countering the statutory prerequisites. Going forward, Sapienza will guide courts to a nuanced, date‑by‑date analysis of EDTPA immunity, bolstering predictability and fairness in adjudicating pandemic‑era malpractice claims.