9 minute read
Legal: COVID-19 pandemic liability
LEGAL
COVID-19 pandemic liability
By Daniel J. Huff, Huff, Powell & Bailey, LLC
Let 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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4) Any building or facility where human births occur on a regular and ongoing basis and which is classified by [DCH] as a birthing center. O.C.G.A. § 31-7-1(4)(E) 5) Any building or facility which is devoted to the provision of treatment and rehabilitative care for periods continuing for 24 hours or longer for persons who have traumatic brain injury, as defined [by law]. O.C.G.A. § 31-7-1(4)(F) 6) Any freestanding imaging center where magnetic resonance imaging, computed tomography (CT) scanning, positron emission tomography (PET) scanning, positron emission tomography/computed tomography, and other advanced imaging services as defined by [DCH] by rule, but not including
X-rays, fluoroscopy, or ultrasound services, are conducted in a location or setting not affiliated or attached to a hospital or in the offices of an individual private physician or single group practice of physicians and conducted exclusively for patients of that physician or group practice. O.C.G.A. § 31-7-1(4)(G) 7) Any licensed general hospital, destination cancer hospital, or specialty hospital, institutional infirmary, public health center, or diagnostic and treatment center. O.C.G.A. § 31-7-1(5) As noted above, the order specifically does not apply to employees of physician’s and dentist’s private offices. Employees of nearly all other medical or health care institutions, however, qualify for the increased protections provided by this order.
What care and services does the order cover?
Although Gov. Kemp may have intended to extend enhanced statutory immunity only for COVID-19 related services, the language of his order does not limit this enhanced immunity only to individuals treating COVID-19 patients. Instead, his order provides plainly that “services provided or performed by healthcare institutions and medical facilities…shall be considered emergency management activities[.]” This interpretation is reasonable since the pandemic affected and strained even non-COVID-19 aspects of health care. Additionally, the statute providing immunity to auxiliary emergency management workers does not appear to limit immunity to COVID-19 related services. The statute provides that immunity is extended to any qualifying worker “engaged in any emergency management activity complying with or reasonably attempting to comply with…any order promulgated [by applicable law.]” O.C.G.A. 38-3-35(b). Gov. Kemp’s order was promulgated under legal provisions cited by this statute. All qualifying entities can credibly argue that the terms of that order extend to all of the services they “provide or perform.”
Is the order retroactive?
A review of the executive order suggests that its provisions are retroactive to March 14 and extend until the expiration of the Public Health State of Emergency (which was May 13 when this article was written). Although the executive order does not explicitly provide that it is retroactive, it is effective for the duration of the Public Health State of Emergency. Moreover, the order explicitly references only one Public Health State of Emergency (i.e., initiated on March 14 and extended until May 13). There is an argument the order is not retroactive. The final portion of the order provides that it became effective upon Gov. Kemp’s signature on April 14 and expires at the conclusion of the Public Health State of Emergency. Other portions of the order, noted above, suggest that it is meant to apply to the Public Health State of Emergency from its inception until its expiration.
Summary of scope
Based on the foregoing, that this executive order extends, at a minimum, significant immunity to the employees of most medical institutions for any tort occurring on or after April 14 related to COVID-19 related services. We are confident, however, that this order extends absolute immunity to the employees of most medical institutions for any tort arising out of services provided between March 14 and the expiration of the Public Health State of Emergency.
Legal challenges
Several legal challenges will be made regarding the application and scope of this order. At the forefront will be constitutional challenges that the order violates the separation of powers, equal protection, and the right to a jury trial. Editor’s note: On May 12, Gov. Kemp expanded his executive order by “designating all individuals who are licensed, certified, or otherwise authorized under Title 43, Chapter 26 and Chapter 34 to provide health care services in the ordinary course of business or practice of a profession or in an approved education or training program, whose practices are affected by the Public Health Emergency caused by the spread of [COVID-19], and all workers at health care facilities (except those wherein abortion procedures are performed) as auxiliary emergency management workers.” Huff is a founding partner in the Atlanta law firm Huff, Powell & Bailey, LLC. He and his firm defend physicians, institutions and other health care providers in lawsuits alleging malpractice. Contact Huff at dhuff@huffpowellbailey.com or 404.892.4022.
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MAG ‘Top Docs’ videocast passes one million views milestone
The Medical Association of Georgia’s (MAG) Facebook ‘Top Docs’ videocast show recently passed the one million views milestone – reaching an average of 18,000 per episode. “The Top Docs show has evolved into one of MAG’s most accessible and important communications platforms,” says MAG Communications Director Tom Kornegay. “It features leading subject matter experts addressing today’s most pressing health care issues, including COVID-19, which provides our members and their patients and other key stakeholders with information that enables them to make better decisions.” The program is supported with a grant from Alliant Health Solutions. Every ‘Top Docs’ episode is available at www.mag.org/topdocs.
