Like most states, Georgia courts and medical providers are facing complex challenges due to the COVID-19 pandemic. Because of the risks associated with the virus, Gov. Brian Kemp issued a series of executive orders prohibiting many businesses from opening to the public. Over time, Kemp issued additional orders easing those restrictions. However, these orders also included language designed to protect medical providers from liability for malpractice during this time.
Immunity Defenses Resulting from Emergency Declarations
There are three executive orders issued by Kemp that address liability in the medical field during the state of emergency. The first, issued March 14, was the original statewide declaration of a public health emergency. In the March order, Kemp ordered all nonessential businesses to close. The order provided an exception for all “hospitals, health care facilities, clinics, and medical personnel.” This order loosened a number of regulations that affect medical malpractice claims, including lowering training requirements for doctors and nurses. The order goes on to provide immunity for claims based on inadequate training due to the suspension of these training requirements.
The governor issued additional orders on April 14 and 20. Those executive orders provided broad immunity to medical professionals. By declaring all employees, staff, and contractors of medical facilities and health care institutions as “auxiliary emergency management workers,” the order attempts to extend governmental immunity to most medical providers in Georgia.
Whether or not the executive order effectively will bar medical malpractice claims remains to be seen. To date, the issue has not been taken up by the Georgia Supreme Court.
Legislation Providing Immunity for COVID-19 Liabilities
Georgia’s Legislature passed the Georgia COVID-19 Pandemic Business Safety Act on June 26. Under the act, no covered entity or individual can be held liable for a COVID-19 liability claim unless the claimant proves gross negligence, reckless actions, willful misconduct, or intentional infliction of harm.
The legislation also creates a rebuttable presumption that claimants assume the risk of harm. Local business owners will need to post this warning at the entrance to their business for the presumption to apply:
“Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.”
By Joel Williams, contributing writer and partner at Williams|Elleby, a personal injury law firm based in Kennesaw, GA.