David Allen, Megan Lawless and Dylan Braverman Obtain Pre-Answer Dismissal of Wrongful Death, Malpractice and Gross Negligence Claims Against 5 Physicians and a Major Staten Island Hospital

The COVID-19 team is pleased to announce the dismissal of wrongful death, malpractice and gross negligence claims against five physicians a major Staten Island hospital who stood with the community in battling COVID-19. All claims arose from the care of a severely ill COVID-19 patient by the hospital and its clinical staff at the height of the initial COVID-19 surge that swept Staten Island in early 20202. The Court found that the state EDTPA immunity and federal PREP Act immunity barred the claims since all care was impacted by the desire to stop the spread of COVID-19 and to treat the patient’s severe COVID-19 symptoms. The Court also found that the claims related to the use of COVID-19 countermeasures. Plaintiff argued that the allegations, including a failure to conduct mouth-to-mouth resuscitation which was contraindicated by COVID-19 protocols, amounted to gross negligence which is an exception to the EDTPA. The court rejected the claim, and found that no genuine gross negligence was pled. As a result, all claims were dismissed. David Allen, Dylan Braverman and Megan Lawless wrote the moving papers and Megan Lawless orally argued the motion before the court.