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Immunity for Private Entities Under State and County Contracts Administering Hydroxychloroquine Under the Prep Act
April 15, 2020

New York Executive Order 202.10 and the Gross Negligence Standard in New York, New Jersey and Pennsylvania

On March 7, 2020, New York Governor Andrew Cuomo issued Executive Order 202 declaring a state of emergency for the entire State of New York.

On March 23, 2020, Governor Cuomo issued Executive Order 202.10 entitled “Continuing Temporary Suspension and Modification of the Laws Relating to the Disaster Emergency”, in response to the transmission of COVID-19 documented in New York State and that was expected to continue, to ensure that the State of New York has adequate bed capacity, supplies and providers to treat patients affected with COVID-19 as well as patients with other maladies, and to eliminate any obstacle to the provision of supplies and medical treatment to ensure that the New York healthcare system has adequate capacity to provide care to all who need it.

In this Executive Order, Governor Cuomo temporarily suspended or modified from March 23, 2020 to April 22, 2020, various statutes, local laws, ordinances, orders, rules and regulations or parts in an effort to combat the spread of COVID-19. One of the provisions of this Executive Order extends the coverage of the “Good Samaritan” protections of Sections 6527(2), 6545, and 6901(1) of the Education Law:

. . . to the extent necessary to provide that all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional . . . [Emphasis added]

This provision is critical in protecting medical institutions and medical professionals in New York who are normally subject to a negligence standard of care in medical malpractice actions but are assisting in the treatment of COVID-10 patients although they do not have the typical background and experience to do so. Furthermore, given the increase in COVID-19 patients in New York, it is highly likely that Governor Cuomo will extend the time frame of this provision. Moreover, although the governors of New Jersey and Pennsylvania have not issued such an Executive Order, it is likely that they may do so. Accordingly, in this article, we will attempt to summarize the gross negligence standard in these three states which will helpful in the defense of COVID-19 claims.

I. New York
In the seminal case of Colnaghi, U.S.A. v. Jeweler Protection Servs., Ltd., 81 N.Y.2d 821, 823 (1993), the New York Court of Appeals stated that “’gross negligence’ differs in kind, not only degree, from claims of ordinary negligence. It is conduct that evinces a reckless disregard for the rights of others or “smacks” of intentional wrongdoing.” differs “in kind, not only degree, from claims of ordinary negligence.” It defined gross negligence as “conduct that evinces reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing.” Such conduct “represents an extreme departure from the standards of ordinary care to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” Saltz v. First Frontier, L.P., 782 F. Supp. 2d 61, 75 (S.D.N.Y. 2010) (citing AMW Materials Testing, Inc. v. Town of Babylon,584F.3d­ 436, 454 (2d Cir. 2009) (quoting Rolf v. Blyth, EastmanDillon & Co.,570F.2d38, 47 (2d Cir. 1978)), aff’d 485 F. App’x 461 (2d 2012).

Stated differently, a party is grossly negligent when it fails to exercise even “slight care” (Food Pageant v. Consolidated Edison Co., 54 N.Y.2d 167, 172 (1981)) or “slight diligence” (Dalton v. Hamilton Hotel Operating Co., 242 N.Y. 481, 488 (1926); see DRS Optronics, Inc. v. North Fork Bank, 43 A.D.3d 982, 986 (2d Dept 2007); Gentile v. Garden City Alarm Co., 147 A.D.2d 124, 131 (2d Dept 1989); see also New York Pattern Jury Instruction 2:10A (“Gross negligence means a failure to use even slight care, or conduct that is so careless as to show complete disregard for the rights and safety of others”).

II.New Jersey
Per New Jersey Model Jury Charge 5.12, the New Jersey Supreme Court has endorsed the following definition of gross negligence: 

Gross negligence is an act or omission, which is more than ordinary negligence, but less than willful or intentional misconduct. Gross negligence refers to a person’s conduct where an act or failure to act creates an unreasonable risk of harm to another because of the person’s failure to exercise slight care or diligence.

Steinberg v. Sahara Sam’s Oasis, LLC, 226 N.J. 344 (2016). Gross negligence occurs on the continuum between ordinary negligence and intentional misconduct. The continuum runs from (1) ordinary negligence, through (2) gross negligence, (3) willful and wanton misconduct, (4) reckless misconduct to (5) intentional misconduct. The difference between negligence and gross negligence is a matter of degree. Monaghan v. Holy Trinity Church, 275 N.J. Super. 594, 599 (App. Div. 1994); Stuyvesant Assoc. v. Doe, 221 N.J. Super. 340, 344 (Law Div. 1987). Gross negligence does not imply willful or wanton misconduct or recklessness. Stuyvesant Associates. “Essentially, the concept of willful and wanton misconduct implies that a person has acted with reckless disregard for the safety of others. Where an ordinary reasonable person would understand that a situation poses dangerous risks and acts without regard for the potentially serious consequences, the law holds him responsible for the injuries he causes.” G.S. v. Dept. Human Serv. DYFS, 157 N.J.161, 179 (1999).

Gross negligence and willful and wanton misconduct are sometimes combined in qualified immunity statutes. For example, N.J.S.A. 62A-27c states that “[t]his subsection (defibrillator use for emergency care) shall not immunize a person for any act of gross negligence or willful or wanton misconduct.” The terms are not equivalent and their meaning, within the context of a particular statute, must be analyzed to determine the minimal conduct that eliminates an immunity defense.

The punitive damages statute, N.J.S.A. 2A:15-5.10, defines “wanton and willful disregard” as a deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission.

The comparative negligence statute recognizes gross negligence as only different in degree from ordinary negligence. Draney v. Bachman, 138 N.J. Super. 503 (Law Div. 1976). Ordinary and gross negligence will generally only support a claim for compensatory damages, while willful and wanton misconduct will support punitive damages.  Edwards v. Our Lady of Lourdes Hospital, 217 N.J. Super. 448, 462 (App. Div. 1987); N.J.S.A. 2A:15‑5.12. Mere negligence, no matter how gross, will not suffice as a basis for punitive damages.  Smith v. Whitaker, 160 N.J. 221 (1999) citing. DiGiovanni v. Pessel, 55 N.J. 188, 190 (1970); Schick v. Ferolito, 167 N.J. 7 (2001) (Verniero, J. concurring/dissenting opinion).

To aid the jury’s grasp of this concept, the trial court may give examples of gross negligence that convey the notion that it (1) is the failure to exercise a slight degree of care, (2) is lack of even scant care, (3) implies the absence of care or indifference to others, (4) thoughtless disregard to the consequence that may follow from an act, (5) an act done with utter unconcern for the safety of others, or (6) an “omission of slight care that even an inattentive and thoughtless person never fails to take of their own concerns.” Capezzaro v. Winfrey, 153 N.J. Super. 267 (App. Div. 1977) (quoting Dudley v. Camden and Phila. Ferry Co., 42 N.J.L. 25, 27 (Sup. Ct. 1880)).

III.Pennsylvania
Under Pennsylvania tort law, the term “gross negligence” does not normally arise since most unintentional torts are based on negligence and the more egregious conduct is defined as “reckless or wanton” and limited primarily to the realm of intentional torts or such outrageous conduct as to give rise to punitive damages. Rather, the term “gross negligence” would appear to be primarily of statutory origin in Pennsylvania. Nevertheless, it bears discussing because there are a number of statutes under which it is commonly used.

Under the Mental Health Procedures Act, 50 P.S. § 7101 et seq. (“MHPA”), a physician, peace officer, or other authorized person who participates in a decision that a person be examined under the Mental Health Act or discharged or placed in partial hospitalization or outpatient care or in restraints is immunized from civil or criminal liability for his or her decisions or any of the consequences, “[i]n the absence of willful misconduct or gross negligence.”50 P.S. § 7114. [Emphasis added] Cases interpreting this statute have attempted to define “gross negligence” under the MHPA. In Albright v. Abington Memorial Hospital, 548 Pa. 268, 278, 696 A.2d 1159, 1164 (Pa. 1997), the Pennsylvania Supreme Court noted that “the legislature intended to require that liability be premised on facts indicating more egregiously deviant conduct than ordinary carelessness, inadvertence, laxity, or indifference” and held as follows:

We hold that the legislature intended the term gross negligence to mean a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.

Id. at 548 Pa. 268, 278, 696 A.2d 1159, 1164 (1997) (quoting Bloom v. DuBois Regional Medical Center. 409 Pa. Super. 83, 597 A.2d 671, 679 (1991)). The Albright and Bloom definition of gross negligence has also been adopted by the Federal District Courts in Pennsylvania. Estate of Whitling ex rel. Whitling v. United States, 99 F.Supp.2d 636 (W.D. Pa. 2000)Legion Indemnity Co. v. Carestate Ambulance, Inc., 152 F.Supp.2d 707 (E.D. Pa. 2001).

In addition to the MHPA, the Mental Health and Mental Retardation Act of 1966 (“MHMR”), 50 P.S. § 4603, also uses the term “gross negligence” when limiting immunity provided by statute. MHMR exempts “causes of action based upon gross negligence or incompetence” from immunity. “[G]ross negligence is ‘a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.’“ Potts v. Step By Step, Inc., 26 A.3d 1115, 1119 (Pa. Super. 2011). The definitions of “gross negligence” per the MHPA and MHMR are also cited in the Subcommittee Notes to Pennsylvania Suggested Standard Civil Jury Instruction No. 13.50 – Gross Negligence

Courts have also not been reticent to grant summary judgments for claims arising under the MHPA and MHMR where gross negligence has not been clearly established. As the Albright court stated:

To require mental health employees and their employers to defend jury trials on the issue of gross negligence where . only ordinary negligence has been established, would gut the limited immunity provision of the [MHPA] of any meaning and unfairly subject such employees and facilities to protracted and expensive litigation.

Albright, at 278-79, 696 A.2d at 1164-65.The Pennsylvania Superior Court has also recognized that the immunity provided by the MHPA “would mean little if the persons or entities covered by that provision were required to undergo trial in every case and leave it to a jury to determine if the complained of misdeeds (if there were any) rose to the level of gross negligence.” Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 525 (Pa. Super. 2003).

IV.Conclusion
Attorneys who will be defending medical institutions and professionals against COVID-19 malpractice claims in New York must be aware of the provision of Governor Cuomo’s Executive Order 202.10 that is protecting these medical institutions and professionals in New York and familiar with the gross negligence standard, which is a higher standard of care than the normal negligence standard. Attorneys who will be defending medical institutions and professionals against these claims in New Jersey and/or Pennsylvania should their governors issue the same or similar Executive Orders and be familiar with the gross negligence standard in these states.

Please visit our website at www.rebarkelly.com to learn more about the legal services we can provide. If you have any questions or would like more information on the issues discussed in this article, please contact Cathleen Kelly Rebar, Patrick J. Healey, or Andrew Shaw.