Narrowing COVID‑19 Health Care Immunity: EDTPA and Non‑COVID Injuries After the 2020 Amendment
Commentary on Damiani v. WSNCH North, Inc., 2025 NY Slip Op 07278 (2d Dept)
I. Introduction
The Appellate Division, Second Department’s decision in Damiani v. WSNCH North, Inc. is a significant contribution to New York’s developing jurisprudence on COVID‑19–era health care immunity. It addresses the scope of the Emergency or Disaster Treatment Protection Act (“EDTPA”) after its August 3, 2020 amendment, and the application of the federal Public Readiness and Emergency Preparedness Act (“PREP Act”) in a hospital malpractice context.
The case does not finally determine liability; instead, it affirms the denial—without prejudice—of a pre‑discovery motion to dismiss under CPLR 3211(a)(7). The key legal development lies in how the court interprets the narrowed statutory phrase “as it relates to COVID‑19,” and how rigorously it requires defendants to prove, at the pleading stage, that alleged malpractice falls within the immunity regimes of the EDTPA and the PREP Act.
In essence, the court holds that:
- After the 2020 amendment, EDTPA immunity is not automatic for all care provided to a patient who happens to have COVID‑19; the care at issue must itself be “as it relates to COVID‑19”.
- Defendants must conclusively demonstrate both that the care qualifies as “health care services” covered by the EDTPA and that it was impacted by pandemic‑driven decisions or activities.
- PREP Act immunity requires a strong factual showing that the alleged injury (here, a pressure ulcer) arose from the use of a covered countermeasure (here, a ventilator), and such showing was not made on the record.
These principles significantly affect how COVID‑era malpractice claims involving non‑COVID conditions (such as pressure ulcers, falls, and other hospital‑acquired complications) will be litigated in New York.
II. Factual and Procedural Background
A. The Underlying Medical Events
In February 2021, during the height of the COVID‑19 pandemic, Robert Damiani (“the decedent”) was brought to the emergency department of St. Joseph Hospital with:
- Complaints of dehydration and tachycardia, and
- A confirmed positive COVID‑19 test.
He was admitted to the critical care unit. At admission, his skin examination was documented as normal. Over the course of his hospitalization, he was treated with medication and supplemental oxygen and eventually intubated.
Three days after intubation, a nurse documented a sacral pressure ulcer. The record shows:
- The ulcer was measured and treated with topical medication.
- A nursing note ordered turning and repositioning every two hours.
- A later note directed that the “Hyperbaric Wound Care Center” be notified and that a wound‑care evaluation be performed.
- Two days after the first ulcer note, a surgical consultation was obtained; topical treatment continued.
- Two days later, the decedent was transferred to another hospital.
The decedent died in May 2021.
B. The Lawsuit
The plaintiff, Christina Damiani, as representative of the decedent’s estate, commenced an action inter alia to recover damages for medical malpractice against:
- WSNCH North, Inc., doing business as St. Joseph Hospital,
- Catholic Health System of Long Island, Inc., and
- Another defendant not involved in the appeal.
In her bill of particulars, the plaintiff alleged that the hospital defendants negligently:
- Failed to prevent, diagnose, and treat the decedent’s pressure ulcer, including
- Failing to properly stage the ulcer,
- Failing to adjust orders for more frequent turning and positioning when the existing regimen proved inadequate, and
- Failing to provide an air mattress and other assistive devices.
C. The Motion to Dismiss
After joinder of issue but prior to discovery, the hospital defendants moved to dismiss the complaint as against them under CPLR 3211(a)(7) (failure to state a cause of action), arguing that:
- They were immune from liability under the EDTPA (Public Health Law former art 30‑D, §§ 3080‑3082, since repealed), and
- They were alternatively immune under the federal PREP Act (42 U.S.C. § 247d‑6d et seq.).
In support, they submitted:
- The decedent’s medical records, and
- An affirmation from the hospital’s chief medical officer.
The plaintiff opposed, arguing, among other things, that as of its August 3, 2020 amendment, the EDTPA did not extend immunity to failures in the prevention and treatment of a pressure ulcer that was not itself COVID‑19‑related.
The Supreme Court, Queens County (Catapano‑Fox, J.) denied the motion, without prejudice to renewal upon completion of discovery. The defendants appealed to the Second Department.
III. Summary of the Court’s Decision
The Appellate Division affirmed the Supreme Court’s order, with costs, holding that:
- Because the motion to dismiss under CPLR 3211(a)(7) was decided with evidentiary submissions (medical records and an affirmation) but was not converted into a motion for summary judgment, the governing standard was whether the plaintiff has a cause of action, not merely whether she has sufficiently stated one.
- Under that standard, the defendants had to “conclusively” establish that EDTPA or PREP Act immunity applied, such that the plaintiff had no viable cause of action as a matter of law.
- They failed to do so as to the EDTPA because they did not conclusively demonstrate:
- That the care at issue constituted “health care services” as defined by the post‑amendment EDTPA (“as it relates to COVID‑19”), nor
- That the treatment of the decedent’s skin integrity and pressure ulcer was impacted by the hospital’s pandemic‑driven decisions or activities in support of state directives.
- They also failed to do so under the PREP Act because their submissions did not establish that there was no significant dispute as to whether the pressure ulcer arose from the use of a ventilator, a covered countermeasure.
Accordingly, dismissal at the pleading stage on immunity grounds was inappropriate. The case may proceed to discovery, after which the defendants may renew their immunity arguments on a fuller record.
IV. Detailed Analysis
A. Procedural Posture and the CPLR 3211(a)(7) Standard
The court’s analysis is anchored in the distinctive standard that applies when a CPLR 3211(a)(7) motion is decided on evidentiary submissions but is not converted to summary judgment. The opinion relies on Kluska v. Montefiore St. Luke’s Cornwall, 227 A.D.3d 690, and Hyman v. Richmond Univ. Med. Ctr., 239 A.D.3d 617, which in turn draw from the Court of Appeals’ decision in Rovello v. Orofino Realty Co., 40 N.Y.2d 633.
The operative rule, as quoted by the court, is:
“Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed.” (Kluska, 227 A.D.3d at 691 [internal quotation marks omitted]).
The court further emphasizes:
“Submissions by the defendant on a motion pursuant to CPLR 3211(a)(7) ‘will seldom if ever warrant [dismissal] . . . unless [they] establish conclusively that plaintiff has no cause of action.’” (Hyman, 239 A.D.3d at 618, quoting Rovello, 40 N.Y.2d at 636).
Applied here, this means that it is not enough for the defendants to:
- Raise a plausible claim of immunity, or
- Show that their version of the facts may ultimately prevail.
Rather, they must demonstrate that, even taking the plaintiff’s allegations as framed, any material factual dispute is illusory and that immunity applies as a matter of law. This is a demanding standard, particularly where immunity depends on factual questions (e.g., whether care was “impacted” by COVID‑19 responses, or whether an injury “arose from” use of a ventilator).
B. The EDTPA: Scope, Amendment, and Application
1. The EDTPA’s Basic Structure
The EDTPA (Public Health Law former art 30‑D, §§ 3080‑3082), enacted in 2020 and repealed in 2021, granted broad civil immunity to health care facilities and professionals for acts or omissions in the course of providing certain “health care services” during the COVID‑19 emergency, subject to various conditions, including good faith.
At the time of the decedent’s treatment (February 2021), former Public Health Law § 3082(1) provided that a health care facility would have immunity from civil liability for harm alleged to have arisen from an act or omission in the course of providing “health care services” if:
- The facility was providing “health care services” in accordance with applicable law or, where appropriate, pursuant to a COVID‑19 emergency rule;
- The act or omission occurred in the course of providing “health care services,” and the treatment was impacted by the facility’s decisions or activities in response to or as a result of the COVID‑19 outbreak and in support of state directives; and
- The facility provided the “health care services” in good faith.
In Damiani, the focus is on two threshold questions:
- Was the alleged negligent care within the statutory definition of “health care services”?
- Was that care “impacted” by pandemic‑driven decisions or activities?
2. The Critical Definition of “Health Care Services”
The heart of the case is the evolution of the term “health care services” and how it is to be interpreted post‑amendment.
Originally (effective March 7, 2020, to August 2, 2020), “health care services” was broadly defined to include services that relate to:
- The “diagnosis, prevention, or treatment of COVID‑19,” or
- The “assessment or care of an individual with a confirmed or suspected case of COVID‑19.”
Under that broad version, nearly all care delivered to a COVID‑19‑positive patient could be argued to fall within “health care services,” since it would be part of “the assessment or care of an individual with” COVID‑19.
However, effective August 3, 2020, the Legislature amended the definition to narrow its reach. As the court notes, the Senate Introducer’s Memorandum in Support explained that the purpose was:
“to further narrow the scope of [the EDTPA] liability protections to apply only when a health care facility or medical professional is providing direct care related to the diagnosis or treatment of COVID‑19 and the care is impacted by COVID‑19.”
The amended definition of “health care services,” in relevant part, included services that relate to:
- The “diagnosis or treatment of COVID‑19,” or
- The “assessment or care of an individual as it relates to COVID‑19, when such individual has a confirmed or suspected case of COVID‑19” (emphasis added).
The addition of the phrase “as it relates to COVID‑19” is the key textual change. It shifts the focus from “care of an individual with COVID‑19” (which could include any medical issue during a hospital stay) to care that has a discernible relationship to COVID‑19 itself.
3. Application to the Decedent’s Pressure Ulcer
The court acknowledges that under the pre‑amendment definition, the plaintiff’s allegations would have fallen within “health care services”:
“Under the pre‑amendment law, the alleged negligent acts and omissions concerning the care of the decedent’s pressure ulcer would have occurred in the course of providing ‘health care services,’ as they would have occurred in the course of providing services related to ‘the assessment or care of an individual with a confirmed . . . case of COVID‑19.’”
But because the decedent was treated in February 2021, the post‑amendment, narrower definition controlled. Under that version, the defendants needed to show that the care relating to the pressure ulcer:
- Constituted treatment for COVID‑19, or
- Constituted the assessment or care of the decedent “as it relates to COVID‑19.”
The court concluded that the defendants did not meet that burden:
“[U]nder the post‑amendment law, the defendants failed to conclusively demonstrate that, at a minimum, once the pressure ulcer developed, the alleged negligent acts and omissions relating to the treatment of that condition occurred in the course of providing treatment for COVID‑19 or care to an individual with a confirmed case of COVID‑19 ‘as it relates to COVID‑19.’”
The opinion highlights two critical points:
-
The defendants’ broad theory of relatedness is rejected.
The defendants argued that because the decedent was being treated for COVID‑19, all care he received in the hospital—including care for the pressure ulcer—was “related” to COVID‑19. The court rejected this, reasoning:“The defendants’ position that since the decedent was being treated for COVID‑19, all the care that he received in the hospital, including for a pressure ulcer, was related to COVID‑19 would not give any effect to the amendment.”
-
Legislative purpose supports a narrower reading.
The court observes that the plaintiff’s more restrictive reading aligns with the Legislature’s stated objective to narrow the immunity from covering all care rendered to patients “with” COVID‑19 to only care rendered “as it relates to COVID‑19.” To support this interpretive approach, the court cites CIT Bank N.A. v. Schiffman, 36 N.Y.3d 550, 559, for the principle that statutory amendments must be construed so as to give effect to the legislative change, not render it meaningless.
Finally, the court notes that the defendants did not present evidence that pressure ulcers are specifically a COVID‑19 complication:
“Significantly, the defendants did not show that pressure ulcers are a complication of COVID‑19 specifically, as opposed to an entirely unrelated condition that arises during the course of treatment for many different types of diseases and injuries.”
This underscores that, going forward, defendants seeking EDTPA immunity for non‑COVID conditions will likely need to:
- Show that the condition itself is a recognized COVID‑19 complication, or
- Demonstrate a specific, medically grounded connection between the alleged negligent care and the patient’s COVID‑19 diagnosis or its treatment.
C. The Requirement of COVID‑Related Impact on Care
Even if the pressure‑ulcer care could somehow be characterized as “health care services” under the amended definition, EDTPA immunity still requires that:
“the treatment of the individual was impacted by the health care facility’s decisions or activities in response to or as a result of the COVID‑19 outbreak and in support of the state’s directives” (Public Health Law former § 3082[1][b]).
The Second Department holds that the defendants also failed this requirement:
“[T]he defendants also failed to conclusively demonstrate that the treatment of the decedent’s skin integrity and pressure ulcer was impacted by the hospital’s ‘decisions or activities in response to or as a result of the COVID‑19 outbreak and in support of the state’s directives’ (Public Health Law former § 3082[1][b]; see Gonnelly v. Newburgh Operations, LLC, 236 A.D.3d 866, 868; Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 A.D.3d 618, 619).”
The defendants’ key evidentiary submission on this point was the affirmation of the hospital’s chief medical officer. The court characterizes it as:
- Detailed concerning the decedent’s COVID‑19 treatment; but
- General and conclusory as to the specific impact of the facility’s COVID‑19 response on the plaintiff’s alleged injuries—i.e., deficiencies in skin and ulcer care.
That distinction is important. It signals that:
- General descriptions of pandemic conditions (e.g., staffing shortages, surges, resource constraints) are not, by themselves, enough.
- Defendants must link those pandemic‑driven factors to the particular alleged act or omission that is the subject of the malpractice claim.
This approach parallels the Second Department’s prior decisions in:
- Gonnelly v. Newburgh Operations, LLC, 236 A.D.3d 866 (nursing home context); and
- Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 A.D.3d 618 (another long‑term care context).
In those cases as in Damiani, the Appellate Division takes a strict approach to the “impacted by” prong, requiring a fact‑specific causal nexus between COVID‑related operational changes and the alleged malpractice.
D. PREP Act Immunity and Its Limits
The defendants also sought dismissal based on immunity under the federal PREP Act, which grants broad immunity to “covered persons” for claims relating to the administration or use of “covered countermeasures” (e.g., certain drugs, devices, and other countermeasures adopted in response to a declared public health emergency).
In this case, the relevant countermeasure was the ventilator used to treat the decedent’s respiratory failure. The precise contours of PREP Act immunity are not exhaustively analyzed in the opinion, likely because the court found the evidentiary showing plainly insufficient at the pleading stage.
Relying on Kluska v. Montefiore St. Luke’s Cornwall, 227 A.D.3d 690, 692, the court holds:
“[T]he defendants’ evidentiary submissions ‘failed to establish that there is no significant dispute as to whether the [decedent’s] pressure ulcer[ ] arose from the use of a ventilator,’ such that the defendants failed to demonstrate their entitlement to dismissal of the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7) on the basis of the PREP Act.”
The key points are:
- PREP Act immunity requires a
between the injury and the covered countermeasure (here, ventilator use). - On a CPLR 3211(a)(7) motion supported by evidence, the defendants had to show that no significant factual dispute existed as to that causal link.
- The development of a pressure ulcer in a critically ill, immobile patient can have multiple causes (e.g., immobilization, nutritional status, staffing levels, turning protocols), not all of which are inherently tied to the ventilator itself.
Because the defendants did not eliminate factual dispute on whether the ulcer “arose from” ventilator use—as opposed to non‑countermeasure‑related factors—dismissal under the PREP Act could not be granted.
E. Precedents and Authorities Cited
The opinion relies on and harmonizes several significant precedents:
1. Kluska v. Montefiore St. Luke’s Cornwall, 227 A.D.3d 690
Kluska is cited for:
- The enhanced standard on a CPLR 3211(a)(7) motion when evidentiary material is considered (supra), and
- The proposition that PREP Act immunity requires defendants to establish the absence of significant dispute that the injury arose from use of a ventilator (or another covered countermeasure).
Damiani follows Kluska in demanding a robust factual showing at the pleading stage before granting immunity‑based dismissal.
2. Hyman v. Richmond Univ. Med. Ctr., 239 A.D.3d 617
Hyman is cited both for the Rovello standard (“submissions … will seldom if ever warrant dismissal … unless they establish conclusively that plaintiff has no cause of action”) and as a comparison in evaluating the sufficiency of affidavits purporting to establish EDTPA immunity.
The court remarks that the chief medical officer’s affirmation in Damiani was “detailed as to the particular treatment that the decedent received for COVID‑19 but was general and conclusory” as to the effect of the COVID‑19 response on the pressure‑ulcer care. The “cf.” signal to Hyman suggests that, in Hyman, the evidence more concretely tied pandemic conditions to the alleged malpractice, allowing for a more favorable result for the defense.
3. Rovello v. Orofino Realty Co., 40 N.Y.2d 633
Rovello is the foundational case establishing that evidentiary submissions on a motion to dismiss under CPLR 3211(a)(7) cannot be used simply to contest the truth of the plaintiff’s allegations unless they “conclusively” show that the plaintiff “has no cause of action.”
By invoking Rovello, the court underscores that EDTPA and PREP Act immunity claims are generally fact‑dependent and ill‑suited to resolution on a thin pre‑discovery record unless the evidence is extraordinarily one‑sided.
4. Gonnelly v. Newburgh Operations, LLC, 236 A.D.3d 866; Damon v. Clove Lakes Healthcare & Rehabilitation Ctr., Inc., 228 A.D.3d 618
These nursing‑home cases are cited for the proposition that EDTPA immunity requires:
- A clear showing that the treatment at issue was “impacted by” COVID‑19–related decisions or activities, and
- Affidavits that merely recite general pandemic conditions without tying them to the alleged malpractice are insufficient.
Damiani extends this logic from the long‑term‑care context to an acute‑care hospital setting, reinforcing a unified, restrictive interpretation of EDTPA immunity across health care settings.
5. CIT Bank N.A. v. Schiffman, 36 N.Y.3d 550
CIT Bank is not a health‑care case but a mortgage foreclosure decision dealing with RPAPL 1304 notice requirements. It is invoked here for a general canon of statutory construction: when the Legislature amends a statute, courts must assume that it intends to change the law in some meaningful way, not merely “restate” it. The court uses CIT Bank to support its reading that the addition of “as it relates to COVID‑19” in the EDTPA’s definition of “health care services” must narrow—not leave untouched—the statute’s prior reach.
V. Impact and Future Implications
A. Clarification of Post‑Amendment EDTPA Scope
The most important doctrinal contribution of Damiani is its clear articulation that, after the August 3, 2020 amendment:
- EDTPA immunity does not automatically extend to all medical care provided to COVID‑positive patients; and
- For immunity to apply, the care at issue must be:
- Directly related to the diagnosis or treatment of COVID‑19, or
- Part of the assessment or care of the patient as it relates to COVID‑19.
In practical terms, this means:
- Claims involving non‑COVID conditions (e.g., pressure ulcers, falls, catheter‑related injuries, surgical errors) will not be immunized merely because they arose during a hospitalization for COVID‑19.
- Defendants must show a specific link between:
- The alleged malpractice and the patient’s COVID‑19 condition, or
- The alleged malpractice and operational changes made in response to the pandemic.
B. Higher Evidentiary Burden on Defendants at the Pleading Stage
Damiani confirms that immunity defenses under the EDTPA and PREP Act are often ill‑suited to resolution on a pre‑discovery motion to dismiss, unless:
- The immunity is clear from the face of the pleadings and incontrovertible documentary evidence, and
- Defendants can “conclusively” negate any material factual dispute on the immunity elements.
Defense counsel will need to:
- Prepare detailed, case‑specific affidavits explaining how particular aspects of care were affected by COVID‑19–induced policies, staffing, or resource allocation; and
- Connect the dots between pandemic measures and the specific alleged harm—not just describe the hospital’s pandemic response in general terms.
C. Litigation of Non‑COVID Complications During the Pandemic
For plaintiffs, Damiani is a roadmap for challenging immunity defenses in cases where:
- The patient had COVID‑19 but the claim centers on a different condition (e.g., pressure ulcers, delayed cancer diagnosis, ordinary surgical negligence), and
- The alleged negligence can be framed as independent of the COVID‑19 illness itself.
Plaintiffs can:
- Emphasize the non‑COVID nature of the complication,
- Cite the Legislature’s intent to narrow EDTPA immunity, and
- Argue that general pandemic conditions, without more, do not establish the required “impact” on the particular care at issue.
D. PREP Act: A Narrow, Causation‑Focused Shield
The decision also reinforces a restrained view of PREP Act immunity in New York:
- PREP Act protection is not a blanket immunity for any injury that occurs while a patient is using, or is near, a covered countermeasure.
- Defendants must show that the injury itself “arose from” the use or administration of that countermeasure.
For example, in cases like this, where a patient is intubated and on a ventilator, a pressure ulcer may or may not be causally connected to the ventilator use. Unless defendants can convincingly demonstrate that connection on an undisputed factual record, PREP Act immunity will not warrant dismissal at the pleading stage.
E. Institutional and Policy Implications
Institutionally, Damiani suggests that:
- Hospitals and health systems cannot assume that COVID‑era malpractice suits will be disposed of early on immunity grounds, especially where non‑COVID complications are alleged.
- Risk management and documentation practices—particularly concerning the reasons for altered standards of care, staffing, or resource allocation during emergencies—will be critical in any future attempt to prove that care was “impacted” by pandemic decisions.
- The repeal of the EDTPA (L 2021, ch 96, § 1) does not eliminate litigation over its prior applicability; instead, courts will continue to interpret its scope for acts taken while it was in force.
VI. Complex Concepts Simplified
This section explains some of the more technical legal and medical concepts in plainer terms.
1. CPLR 3211(a)(7) – Motion to Dismiss for Failure to State a Cause of Action
- This is an early motion where a defendant claims that, even if all the plaintiff’s allegations are true, the law does not provide a remedy.
- When the court considers documents (like medical records or affidavits) but does not treat the motion as a full summary judgment motion, the defendant must show not only that the plaintiff’s legal theory is weak, but that the plaintiff effectively has no viable claim at all.
2. The EDTPA (Emergency or Disaster Treatment Protection Act)
- A now‑repealed New York law passed early in the COVID‑19 pandemic to protect health care providers and facilities from lawsuits over care provided during the emergency.
- Initially very broad, it covered almost all care to patients with COVID‑19.
- In August 2020, the Legislature narrowed it so that it mainly covered:
- Direct COVID‑19 diagnosis and treatment, and
- Other care only when it was truly related to COVID‑19 and impacted by pandemic‑driven decisions.
3. “As It Relates to COVID‑19”
- This phrase limits immunity to care that has a meaningful connection to COVID‑19 itself—for example:
- Adjusting medications because of COVID‑related organ damage,
- Decisions about whether to intubate due to COVID pneumonia, or
- Treatment of recognized COVID‑related complications (e.g., certain types of blood clots).
- It does not automatically include every health problem that arises while a patient happens to have COVID‑19 (like a fall or a bed sore) unless that problem is shown to be tied specifically to COVID‑19 or to COVID‑driven changes in care.
4. “Impacted By” COVID‑Related Decisions
- To gain immunity, a facility must show that its alleged errors were influenced by decisions or activities taken in response to the pandemic, such as:
- Reassigning staff,
- Changing staffing ratios,
- Prioritizing certain treatments due to shortages, or
- Following state emergency directives.
- Merely stating that the pandemic existed or that conditions were challenging is not enough.
5. PREP Act
- A federal law that gives broad immunity to certain entities (like hospitals and manufacturers) for claims involving “covered countermeasures,” such as:
- Vaccines,
- Drugs,
- Devices (including ventilators), and
- Other officially designated tools used to respond to a public health emergency.
- To claim immunity, defendants must show that the injury was caused by the use or administration of one of these countermeasures—not just that the countermeasure was in use at the time.
6. Pressure Ulcer (Bed Sore)
- A pressure ulcer is a skin injury, usually over a bony area (such as the sacrum), caused by prolonged pressure, friction, or shear.
- They are common in patients who:
- Are immobile,
- Are critically ill, or
- Have decreased sensation.
- Prevention and treatment protocols typically include:
- Regular turning and repositioning,
- Special mattresses, and
- Careful monitoring and staging of the ulcer.
- In malpractice cases, plaintiffs often allege failure to follow these preventive measures.
VII. Conclusion
Damiani v. WSNCH North, Inc. marks an important refinement in New York’s COVID‑19 immunity jurisprudence. It underscores that:
- The EDTPA’s post‑August 2020 protections are targeted, not blanket; they cover only care that is genuinely “as it relates to COVID‑19” and that is demonstrably affected by pandemic‑related decisions.
- Defendants invoking EDTPA or PREP Act immunity at the pleading stage face a high evidentiary threshold. They must conclusively show not only a legal fit within the statute but also the absence of any material factual dispute on key immunity elements.
- Non‑COVID complications arising during COVID‑19 hospitalizations—such as pressure ulcers—will often fall outside the scope of automatic statutory immunity and be litigated on their merits, subject to fact‑specific assessments of any claimed COVID‑related impact.
By affirming the denial of dismissal without prejudice to renewal, the Second Department allows the case to proceed to discovery, where the full factual context can be developed. Going forward, Damiani will serve as a clear precedent guiding both trial courts and litigants on the proper, narrowed reach of EDTPA immunity and the evidentiary rigor required to obtain dismissal under either the EDTPA or the PREP Act at the earliest stages of litigation.
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