Elective Surgeries During the Coronavirus Pandemic

During his daily briefing on March 25, 2020, New York Governor Andrew M. Cuomo confirmed that there are a total of 30,811 cases of COVID-19 (“coronavirus”) in New York State (and this number is rising daily).[1] It is projected that at the apex of this pandemic, approximately 140,000 hospital beds and 40,000 intensive care unit beds will be needed by New York State.[2] Currently, New York State only has 53,000 hospital beds and 3,000 ICU beds.[3] It is estimated that that the apex could be approximately 14 to 21 days away.[4]


In an effort to increase the number of beds available to those individuals infected with the coronavirus, as well as to conserve the supply of masks, gowns, and other personal protective equipment, at a press conference on March 22, 2020, Governor Cuomo announced that the State would be “canceling all elective, non-critical surgery for hospitals as of Wednesday [March 25th]. Elective, non-critical – the critical surgery, fine. If it’s not critical then postpone it.”[5] According to Governor Cuomo, elective surgeries use about 25% to 35% of available beds.[6]

On March 23, 2020, Governor Cuomo signed Executive Order No. 202.10, which provides that:

The Commissioner of Health is authorized to direct, and shall so direct, all general hospitals, ambulatory surgery centers, office-based surgery practices, and diagnostic and treatment centers to increase the number of beds available to patients, including by canceling all elective surgeries and procedures, as the Commissioner of Health shall define.[7]

According to the Executive Order, this ban on elective surgeries will remain in effect until April 22, 2020.[8]

What is an Elective Surgery?

Executive Order No. 202.10 provides that the New York State Commissioner of Health shall define “elective surgeries and procedures.”[9] On March 24, 2020, New York Commissioner Howard A. Zucker, M.D., J.D. issued a Directive to hospitals, ambulatory surgery centers, office-based surgery practices, and diagnostic and treatment centers categorizing surgeries into three tiers.[10]


A Tier 1 surgery is defined as a low acuity surgery, outpatient surgery, or not life-threatening illness, such as carpal tunnel release, upper endoscopy (EGD), colonoscopy, and cataracts. Any Tier 1 procedure should be postponed.[11]


Tier 2 is defined as an intermediate acuity surgery that is not life threatening, but has the potential for future morbidity and mortality, and requires in-hospital stay. Some examples of Tier 2 procedures include low risk cancer surgeries, non-urgent spine and orthopedic (hip or knee replacement and elective spine) surgery, stable ureteral colic, and elective angioplasty. Hospitals should consider postponing Tier 2 surgeries/procedures.[12]


Finally, Tier 3 is defined as high acuity surgeries and include most cancers, neurosurgery, highly symptomatic patients, transplants, trauma, cardiac with symptoms, and limb threatening vascular surgery. This tier of surgeries/procedures should not be postponed.[13]


According to the Directive, non-essential elective surgeries and non-urgent procedures include all Tier 1 and Tier 2 actions.[14]


What Can Surgeons Do Now That Elective Surgeries are Cancelled?

On March 20, 2020, licensed health professionals received an email from Governor Cuomo requesting their assistance in responding to the COVID-19 pandemic.[15] The State is currently looking for qualified health, mental health, and related professionals to supplement the health care capacity on a temporary basis to help treat seriously ill coronavirus patients. This request for assistance was directed to practicing medical professionals as well as recently retired medical professionals, therapists, psychologists, or qualified medical or nursing school students or staff members.

As of March 25, 2020, 40,000 healthcare workers, including retirees and students, have signed up to volunteer, with more expected to sign up in the coming weeks.[16] Additionally, more than 6,000 mental health professionals have signed up to provide free online mental health services.[17]

For additional information regarding the reserve workforce as well as volunteering, please visit https://coronavirus.health.ny.gov/get-involved-how-you-can-help.

If you have any questions about this Legal Briefing, please contact any attorney in our Firm at (585) 730-4773.

This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC


[1] New York State, Office of the Governor, Amid Ongoing COVID-19 Pandemic, Governor Cuomo Announces 40,000 Health Professionals Have Signed up to Volunteer as Part of the State’s Surge Healthcare Force (Mar. 25, 2020), https://www.governor. ny.gov/news/amid-ongoing-covid-19-pandemic-governor-cuomo-announces-40000-health-professionals-have-signed. [2] New York State, Office of the Governor, Video, Audio, Photos & Rush Transcript: Amid Ongoing COVID-19 Pandemic, Governor Cuomo Announces Distribution of Health Care Supplies to New York City, Long Island and Westchester Hospitals (Mar. 24, 2020), https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-amid-ongoing-covid-19-pandemic-governor-cuomo-announces-1. [3] Id. [4] Id. [5] New York State, Office of the Governor, Video, Audio, Photos & Rush Transcript: Amid Ongoing COVID-19 Pandemic, Governor Cuomo Accepts Recommendation of Army Corps of Engineers for Four Temporary Hospital Sites in New York (Mar. 22, 2020), https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-amid-ongoing-covid-19-pandemic-governor-cuomo-accepts. [6] Id. [7] New York State, Office of the Governor, Exec. Order No. 202.10 (Mar. 23, 2020), available at https://www.governor.ny.gov/news/no-20210-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency. [8] Id. [9] Id. [10] N.Y. Dep’t of Health, COVID-19 Directive to Increase Availability of Beds by a Minimum of 5o% And Provide Necessary Staffing and Equipment (Mar. 23, 2020), available at http://www.mssnyenews.org/wp-content/uploads/2020/03/Facility-Directive-3.23-FINAL.pdf. [11] Id. [12] Id. [13] Id. [14] Id. [15] A copy of the email can be found at https://www.urmc.rochester.edu/MediaLibraries/URMCMedia/coronavirus/ documents/email-cuomo.pdf. [16] New York State, supra note 1. [17] Id.

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