PATIENT SAFETY
COVID-19 immunity protections for health care organizations in Georgia By Lisa Hwang, risk intern, and Raj Shah, senior regulatory attorney, The Institute at MagMutual
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eorgia has enacted a series of executive and legislative decisions to combat the spread and impact of COVID-19 or coronavirus.1 Given the magnitude of COVID-19 and rising concerns of accessing health care services during these unprecedented times, health care organizations and physicians are faced with the profuse burden of having to balance providing medical treatment with the potential legal complications. In response to these concerns, Georgia Gov. Brian Kemp issued an executive order on April 14, 2020 (“Executive Order 04.14.20.01”) and the Georgia legislature passed the ‘Georgia COVID-19 Pandemic Business Safety Act’ (S.B. 359)2, which provides health care organizations with heightened legal protections during the COVID-19 pandemic. Gov. Kemp’s executive order 04.14.20.01 protects providers from medical malpractice claims Gov. Kemp issued an executive order titled ‘Designation of Auxiliary Emergency Management Workers and Emergency Management Activities.’ The order is important because it 1) redefines the services that are provided or performed by health care organizations as “emergency management activities”3 and it provides health care organizations with medical malpractice immunity and 2) extends these medical malpractice immunity protections to “employees, staff, and contractors” of health care organizations.4 By expanding the definition of “auxiliary emergency management workers,”5 the order gives health care organizations and physicians greater protection from medical malpractice liability claims for the services they provide during the COVID-19 Public Health State of Emergency. Patients who wish to pursue a medical malpractice liability claim for treatment sought and received during the “COVID-19 Public Health State of Emergency” will have to prove a heightened standard of negligence including willful misconduct, gross negligence, or bad faith. The executive order applies to all patients, and it is not limited to patients diagnosed with COVID-19. Executive Order 04.14.20.01 became effective on April 14, 2020, and the protections will continue throughout the “public health state of emergency.” Georgia COVID-19 ‘Pandemic Business Safety Act’ (S.B. 359) civil liability protections S.B. 3596 provides protection to health care organizations from lawsuits by patients or visitors claiming they contracted COVID-19 at their health care facility by establishing a heightened standard of gross negligence for claims of
transmission and infection of COVID-19. Patients or visitors who wish to pursue claims that they contracted COVID-19 at a health care facility will have to prove a heightened standard of negligence, including willful misconduct, gross negligence, reckless infliction of harm, or intentional infliction of harm. S.B. 359 provides an automatic assumption of the risk defense for health care organizations and medical facilities against allegations of transmission, infection, or exposure of COVID-19 as long as an adequate disclaimer is provided to the patient or visitor. The following provides a rebuttable presumption of assumption of the risk by patients or visitors… Any receipt (or an appointment confirmation) given to the patient to enter the premises that is in at least 10-point Arial font and placed apart from any text that states… Any person entering the premises waives all civil liability against this premise’s owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises. Or A signage posted at a point-of-entry with at least one-inch Arial font placed apart from any other text that states… “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 the risk by entering these premises.” The intention of these disclaimers is to notify patients of the health care organization’s immunity against claims of contracting COVID-19 at the health care facility. If an adequate disclaimer is provided to the patient prior to entry or appropriate signage is displayed at the point-of-entry, in accordance with the font and placement requirements, a health care organization is shielded from a COVID-19 liability claim. COVID-19 immunity best practices While Executive Order 04.14.20.01 and S.B. 359 support health care organizations by providing liability immunities during the COVID-19 Public Health Emergency, it is important for health care organizations to document the steps that are taken to comply with infection control guidelines to prevent the spread and transmission of COVID-19. Additionally, health care organizations need to continue communicating with their patients and offering routine medical care to prevent any allegations about delaying a patient’s
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