LEGAL
COVID-19 pandemic liability By Daniel J. Huff, Huff, Powell & Bailey, LLC
L
et me begin by saying thank you for your service. I wrote this at the end of April, and you are likely reading it in June. The work you do is vital to keeping our communities safe and healthy. Words cannot express our gratitude to each of you, our physician protectors.
In recognition of the unprecedented circumstances posed by COVID-19, Georgia Gov. Brian Kemp issued an executive order extending legal protections to the employees of certain medical providers. This executive order provides, at a minimum, significant tort immunity to all employees of hospitals, nursing homes, and long-term care facilities for all services related to COVID-19 after April 14 and ending with the expiration of the Public Health State of Emergency. We believe, however, that the order may relate back to services provided beginning on March 14 and may potentially apply to all services, not just COVID-19 services.
Overview of April 14 executive order On March 14, Gov. Kemp declared a Public Health State of Emergency, and on April 8 he extended that until May 13. Then on April 14, Gov. Kemp issued Executive Order 04.14.20.01 (“Designation of Auxiliary Emergency Management Workers and Emergency Management Activities”). The governor issued this order under a provision of Georgia law that grants him broad authority to suspend state statutes and regulations and issue other orders he deems necessary to protect the public during a state of emergency. O.C.G.A. § 38-3-51. As part of his April 14 executive order, Gov. Kemp recognized that “health care institutions and facilities require additional flexibility to provide the critical assistance and care needed by this state during this unprecedented emergency.” In recognition of that need for flexibility, Gov. Kemp ordered that all employees, staff, and contractors of qualifying health care institutions and medical facilities be classified as auxiliary emergency management workers – as defined by Georgia law. The order then goes on to define which employees, staff, and contractors qualify for this classification, and it states that “services provided or performed” by qualifying health care institutions and medical facilities are considered emergency management activities as defined by Georgia law.
Protections provided by this order Qualifying entities and their individual providers receive substantial legal protection under this order. Georgia law provides that auxiliary emergency management workers engaged in emergency management activity are not subject to the usual standards of tort liability. O.C.G.A. § 38-3-35 (b). Although there is some ambiguity in the statute and no authority interpreting its application to auxiliary emergency management workers, we believe that the statute provides absolute immunity for any death or injury to a person or property arising from a qualifying worker’s emergency management activity. Id. As its
name implies, this immunity provides an absolute defense to all tort actions arising from an auxiliary emergency management worker’s qualifying activities. It is possible that plaintiffs may argue for a less natural reading of the statue. Even the reading of the statute most generous to plaintiffs, however, grants immunity from tort liability to auxiliary emergency management workers for all incidents except those arising from “willful misconduct, gross negligence, or bad faith.” Even this lesser immunity is an incredibly high standard. Georgia law defines gross negligence as the failure to exercise the “the degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.” At a minimum, the order and the statute it references will provide protection from all but the most egregious conduct.
To whom does the order apply? The order extends heightened protections to employees, staff, and contractors of hospitals, nursing homes, assisted living communities, personal care homes, ambulatory surgical treatment centers, and several other facilities. The order specifically does not extend heightened protections to employees of physicians’ and dentists’ private offices and treatment rooms used primarily for patient care. O.C.G.A. § 31-7-1(4). The specific health care institutions and medical facilities which qualify are as follows… 1) Any building, facility, or place that provide two or more beds and other facilities and services that are used for persons received for examination, diagnosis, treatment, surgery, maternity care, nursing care, assisted living care for periods continuing for 24 hours or longer and which is classified by [the Department of Community Health or DCH, as provided by law], as either a hospital, nursing home, assisted living community, or personal care home. O.C.G.A. § 31-7-1(4)(A) 2) Any building or facility, not under the operation or control of a hospital, which is primarily devoted to the provision of surgical treatment to patients not requiring hospitalization and which is classified by the department as an ambulatory surgical treatment center. O.C.G.A. § 31-7-1(4)(C) 3) Any fixed or mobile specimen collection center or health testing facility where specimens are taken from the human body for delivery to and examination in a licensed clinical laboratory or where certain measurements such as height and weight determination, limited audio and visual tests, and electrocardiograms are made, excluding public health services operated by the state, its counties, or municipalities. O.C.G.A. § 31-7-1(4)(D)
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