COVID-19 Immunity for Health Care Services and Nursing Homes May Change Soon in New York

In previous blog posts, we discussed New York’s Emergency Disaster Treatment Protection Act (EDTPA), which was enacted on April 6, 2020 as part of the state budget. The Act provides immunity to hospitals, nursing homes and other health care professionals that arises from alleged decisions, actions and/or omissions related to the care of individuals with COVID-19 from the initial emergency declaration on March 7, 2020 through its expiration. The EDTPA does not provide immunity for intentional criminal conduct, recklessness or gross negligence by a facility…
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FDA Warns: Hands Off for Some Sanitizers

The COVID-19 pandemic continues to raise a multitude of legal and practical issues in the midst of a terrible health crisis. The legal issues related to potential legal liability for actions during unprecedented public health crisis will continue to grow. This space has addressed product fraud issues, product immunity issues, immunity issues for reasonable actions taken in a time of incomplete, conflicting, and shifting information, nursing home issues, as well as concerns about whether efforts to prevent or treat the disease…
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FDA’s Efforts to Monitor Manufacturers of COVID-19 Products

The Food and Drug Administration (FDA) provided an update on its efforts to combat the sale of fraudulent products during the COVID-19 pandemic through written testimony before the U.S. Senate Subcommittee on Manufacturing, Trade, and Consumer Protection on July 21, 2020. The FDA has uncovered more than 780 fraudulent COVID-19 products, including substandard personal protective equipment (PPE), diagnostic tests, and purported vaccines being offered for sale. The FDA found that the Internet is the primary mechanism for the sale of fraudulent COVID-19-related products, which presents…
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Pennsylvania Supreme Court Reaffirms Fealty to Frye Standard

Although our nation and our courts are still very much in the midst of addressing the acute aspects and effects of the COVID-19 pandemic, there will come a time when our courts return to more “normal” operations. It is likely that this will coincide with an influx of new litigation relating to COVID-19 claims of many kinds, including, of course, personal injury and, tragically, wrongful death claims. For many of those claims, the use of experts and expert testimony to address issues of causation will…
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FDA’s Website a Worthwhile Source of Information

A trip through the FDA’s website is worth the time spent both for those heavily invested in the development of COVID-related diagnostic and treatment endeavors, and those with a causal interest. In this time of the politicization of response to the pandemic and reliance on traditional or social media for their spin (informed, or otherwise), it is worthwhile to either peruse or dissect FDA’s statements and guidance. Surely there is some PR in these materials, but they are the primary source for the content –…
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As Temperatures Heat Up, Remember Litigation Will, Too

For many litigators, including those of us who handle pharmaceutical and medical device litigation, the past several months have seen various departures from how we might otherwise have pursued our pending cases. While effects varied in different parts of the country, and courts in different jurisdictions have adopted different plans for reopening and allowing cases to continue, everyone has likely seen at least some changes. Some attorneys have embraced virtual/remote depositions, while others have opted to wait to schedule and depose witnesses in the hopes…
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New York Governor Releases Report to Show His Nursing Home Admissions Policy Not Linked to Increased Nursing Homes Deaths

We have previously discussed the heightened criticism of New York Gov. Andrew Cuomo’s handling of the nursing homes during the COVID-19 pandemic. In response to that criticism, on, New York Commissioner of Health Dr. Howard Zucker released a report on July 6, 2020 by the New York State Department of Health entitled, “Factors Associated with Nursing Home Infections and Fatalities in New York State During the COVID-19 Global Health Crisis.” The full report is available here. The report states the March 25 admission policy…
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FDA Authorizes First COVID-19 At-Home Sample Collection Kit Authorized For Use With Multiple Tests

Diagnostic testing for SARS-CoV-2 is a key tool in the combat against the COVID-19 pandemic. Since the Secretary of Health and Human Services declared a public emergency on January 31, 2020, calling for the entire country to aid in response to the COVID-19 outbreak, the U.S. has had low diagnostic testing rates due to a lack of testing capabilities. In order to improve access to testing, the U.S. Food and Drug Administration (FDA) recently granted an emergency use authorization to Everlywell, Inc. for an at-home…
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Remember to Explore a Plaintiff’s Pandemic Actions

Recently, we offered some thoughts about the heeding presumption in light of recent news reports of Americans acting in ways that are contrary to public health recommendations. Since then, the CDC published a report of a survey conducted of approximately 500 U.S. adults regarding their understanding and use of some chemical cleaning products and practices. Some of the reported results are shocking – even to those who profess to no longer be surprised by any unwise behaviors that people might engage in. For example, the…
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Will the National Vaccine Injury Compensation Program Be Busy in 2021 (and Beyond)?

The recent withdrawal of emergency use authorization for hydroxychloroquine and chloroquine got us thinking about the implications of rushing Covid-19 remedies—and more specifically, vaccines. “Vaccine development is a long, complex process, often lasting 10-15 years and involving a combination of public and private involvement.” Dr. Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, recently said that by the beginning of 2021 the United States hopes 100 million doses of a Covid-19 vaccine will be available. Depending on when the coronavirus…
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