During the on-going global pandemic many states have adopted additional liability protections for the healthcare industry. Governors in New York, New Jersey, and Michigan have all signed executive orders codifying additional protections. In Georgia, Governor Kemp has signed a number of executive orders that provide different levels of legal immunity for those working to help with the state’s response to the public health emergency. Georgia’s most notable executive order regarding liability protections, was signed into action by the governor on April 14th.
Governor Kemp’s April 14th executive order offered nearly all healthcare workers and facilities the same protections as “auxiliary emergency management workers,” pursuant to O.C.G.A 38-3-35. This code offers sweeping protections against liability during a state of emergency. It states that the parties outlined cannot be held liable for death, injury, or damage to property, except in cases of willful misconduct, gross negligence, or bad faith. The specific designations of who is considered an “auxiliary emergency management worker,” are outlined in O.C.G.A. Codes, 31-7-1(4)(A), 31-7-1(4)(C)-(G) and 31-7-1(5). Based on these codes all active hospitals, nursing homes, ambulatory care facilities, surgical centers, testing lab facilities, birthing centers, imaging centers, or public health centers are protected. These protections went into effect upon the governor’s signature on April 14th and will be in place until the public health state of emergency ends.
Even with executive orders in place to shield the healthcare industry from liability, Georgia lawmakers continued to work toward constructing additional protections. The Georgia house of representatives introduced House Bill 167, which offered increased protections for all Covid-19 related cases, and sought to make them permanent. This specific bill bounced between the Georgia house and senate, until many of the key considerations were absorbed into Senate Bill 359. On the final day of the legislative session SB 359 was adopted, superseding the governor’s April 14th executive order. The bill currently awaits the governor’s signature to be passed into law. Given the governor’s record, the signing of the bill should be considered a formality.
SB 359 undoubtedly took a step farther than Governor Kemp’s April 14th executive order, but a far less significant step than HB 167. One of the key differences between the proposed HB 167, and the adopted SB 359 was the term. HB 167 was set to offer the healthcare industry blanket immunity for cases related to Covid-19 or any mutation for eternity. If Covid-19 or a related virus were to become an annual occurrence, or a seasonal issue like the flu, then the healthcare industry would be fully protected forever. Though many of the key considerations in HB 167 were popular, the broad language of the bill was more than enough to cause concern. Even though SB 359 is tame in comparison to HB 167, there are still notable concerns with its language. SB 359 grants immunity to healthcare workers for COVID-related claims unless there is proof of “gross negligence.” It provides: “No healthcare facility, healthcare provider, entity, or individual, shall be held liable for damages in an action involving a COVID-19 liability claim against such healthcare facility, healthcare provider, entity, or individual, unless the claimant proves that the actions of the healthcare facility, healthcare provider, entity, or individual, showed: gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”
There is no denying that it is important to help support front-line workers and facilities, but giving all healthcare facilities and workers blanket immunity is a step too far. Healthcare facilities now have the option to deny fault for medical malpractice and shift blame onto a pandemic. The language in the bill “where the response to COVID-19 reasonably interfered with the arranging for or the providing of healthcare services or medical care at issue to the claimant” applies to any type of medical malpractice claim, not one involving the contraction of the virus, and offers an easy and ready defense to any legitimate malpractice claim. Sure, there are still open avenues for plaintiffs to bring suit, but you can count on the Covid-19 pandemic as being asserted as a defense in every case in the future.
The distinction between negligence, and gross negligence may not seem significant, but often much smaller issues affect case outcomes. The defense no longer even has to defend negligence. All the defense has to do to be protected from liability, is suggest that any negligence that may have occurred was unavoidable due to the global pandemic. The sweeping nature of this immunity also offers broad protections to facilities and doctors who are working completely outside of the scope of the state of emergency. For example, ambulatory care facilities and birthing centers have no direct role in the state’s response to the pandemic, yet they are protected from negligence. Due to SB 359, healthcare defendants in the state of Georgia will be citing Covid-19 as an excuse for as long as they can. Fortunately, lawmakers had the foresight to set an expiration on the protections of July 14, 2021.
One last thing about this bill is that it grants the same immunity to businesses in the event they are sued by an individual who claims he or she contracted COVID-19 on their premises, as long as the business has taken certain steps before entry. I am not sure those who refuse to wear masks based on their so-called “Constitutional rights” not to wear a mask have considered that. My guess is that those same folks who refuse to wear masks will be the first ones wanting to hire a lawyer in the event they contract the virus. As with most things, time will tell.
Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 31 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Mrs. Clark is the Co-Host of the Podcast See You In Court.
Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.