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

Georgia 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 22 MAG Journal

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

diagnosis or care. Patients have the right to make informed decisions about obtaining medical care and may choose to delay or forgo recommended care during the COVID-19 pandemic. If this occurs, health care organizations should take steps to ensure that those patients understand the risks, benefits, and alternatives before making an informed refusal. Those conversations and any variation in care should be explicitly documented in the applicable medical records.

(legal ‘apologies’ article continued from page 20) are good for patients and patients’ families after bad outcomes. They are also good for physicians and other health care providers. It is unclear whether they truly prevent patients or their families from pursuing a legal action. In some cases, it probably doesn’t matter whether an apology is given or not. Regardless, Georgia law encourages these discussions by preventing them from being used against you in any legal action pursued after a bad outcome. Like many other medical-legal issues, effective communication and documentation are critical to both the medical and the legal

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References

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6. Executive Order 03.20.20.02 authorized telemedicine licenses to out-of-state physicians pursuant to O.C.G.A. § 43-34-31.1 and granted temporary Georgia licenses for pharmacists who are currently licensed in good standing in another state; Executive Order 03.23.20.02 authorized unlicensed nursing school graduates and providers with licenses expired in the past five years to provide health care services during the COVID-19 Public Health State of Emergency in Georgia. Georgia COVID-19 Pandemic Business Safety Act, Georgia General Assembly, 2019-2020 Reg. Sess., SB 359 (Ga. 2020). O.C.G.A. § 38-3-35. Exec. Order 04.14.20.01. Auxiliary management workers include air ambulance services, ambulance providers, emergency medical services systems, EMSC programs, local coordinating entities, cardiac technicians, emergency medical technicians, paramedics, and paramedic clinical preceptors. Effective August 7, 2020.

outcome. Consultation with risk management and legal counsel is recommended when considering these conversations. Huff is a founding partner in the law firm of Huff, Powell & Bailey, LLC. He represents physicians, hospitals and other health care professionals throughout Georgia in professional negligence lawsuits. Huff is a regular contributor to the Journal. Contact Huff at dhuff@ huffpowellbailey.com or 404.892.4022. Paid editorial content.

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Phoebe Health: At the unlikely center of the COVID-19 storm

By Steven Kitchen, M.D.

Like many community-based hospitals, in late 2019 and early 2020 Phoebe Health was carefully monitoring the progress of the novel Coronavirus outbreak via communications from the Centers for Disease Control and Prevention (CDC), Georgia Department of Public Health, and the Johns Hopkins Center for Systems Science and Engineering COVID-19 Global Dashboard. We had activated our emergency preparedness team, updated our infection prevention policies to align with CDC guidelines, and assessed our inventories and vendor allotments of PPE. We felt reasonably well positioned to respond to the emerging viral pandemic based on the projections at that time. However, we never envisioned the fury and magnitude of the gathering storm clouds that were soon to descend upon Albany and the Phoebe Health system. Tuesday, March 10 proved to be a seminal day. One of our critical care physicians informed me that he had been notified that a patient who had been treated in one of our ICUs and later transferred to an Atlanta area hospital had tested positive for COVID-19. The patient’s spouse, hospitalized at the same facility, had also tested positive. The patient had traveled from Atlanta to Albany to attend a funeral, unknowingly serving as one source that resulted in widespread community transmission. Later that afternoon, Phoebe admitted its first confirmed case of COVID-19. Within 24 hours, four additional patients suspected of COVID were admitted. At the directive of our system CEO, Scott Steiner, we activated our emergency preparedness response plan and converted our boardroom into a central command center. We designated a 36-bed general medical unit on the 8th floor and our 12-bed MICU on the 8th floor to cohort COVID patients. Within 48 hours, both units were full and we began converting additional general medical units and ICU beds into COVID units. We soon found ourselves with more than 100 medical beds and all 38 ICU beds occupied with COVID-19 patients. Scrambling to stay ahead of the tidal wave of affected patients, we converted an 11-bed medical unit into an additional COVID ICU, and we converted our PACU into a makeshift ICU for non-COVID patients. Our emergency rooms continued to be inundated with patients presenting in acute respiratory failure, exceeding our bed capacity, and severely taxing our staffing resources. At the peak of the surge, our COVID census exceeded 160 and 30 COVID admissions per day. Our system clearly needed help, and our sister facilities across the state answered the call – accepting patients and lending a much-needed hand to Phoebe in our hour of need. Martin Luther King Jr. once stated that “a measure of a man is not where he stands in moments of comfort and convenience, but where he stands in times of challenge and controversy.” Likewise, I believe that the true character of an institution or enterprise is not revealed in easy times, but rather during adversity, hardship and crisis. I will be forever inspired by the images and memories of the countless and selfless acts of courage and heroism I witnessed during the height of the COVID crisis at Phoebe. 24 MAG Journal

Steven Kitchen, M.D.

The old adage that heroes run towards a fire rather than away from one was embodied when I observed two of our critical care nurse practitioners and one of our intensivists walking into the MICU (which was “Ground Zero” for COVID) to assist their colleagues when all hell was breaking loose. I vividly recall many instances of nurses, physicians, respiratory therapists, and other personnel garbed in full PPE and staying in patients’ rooms for hours without interruption to provide care under the most demanding of circumstances. I recall late one Friday afternoon touring two floors of our medical office building that were being used to sew and assemble cloth masks and becoming overcome with emotion when I observed dozens of our Phoebe family working away on an ad-hoc assembly line with the singular purpose of making a difference and keeping our workforce safe. Any attempt on my part to recognize the legions of Phoebe employees and medical staff, both clinical and non-clinical, who worked tirelessly to serve our community during this crisis, would be woefully inadequate. However, there are some individuals whose presence, service, and leadership were truly extraordinary and deserve special recognition. Medical Director of Critical Care Jyotir Mehta, M.D., was a permanent fixture in our ICUs for many weeks, and he provided steady leadership and remarkable adaptability in the face of unprecedented tumult and uncertainty. Director of Chaplaincy Will Runyon also had a constant presence in our ICUs, bringing immeasurable comfort and support to both patients and staff in the midst of untold suffering. He valiantly assumed the difficult task of FaceTiming family members during end-of-life situations, and many times was the sole person in the room with the patient when the family said their last goodbyes from an iPad. CFO Brian Church and Vice President of Supply Chain Trey French literally sourced the globe to obtain the necessary PPE and other essential supplies that we needed to meet our patients’ care needs and ensure the safety of our workforce. However, the Phoebe response to the immense burden of COVID-19 in our communities ultimately emanated from the exceptional leadership that was provided by Phoebe Health System President and CEO Scott Steiner. From the most nascent days of COVID-19 at Phoebe, Scott embraced the challenge at hand, and he guided our institution through the crisis with unparalleled poise, courage, and grace – a source of unwavering inspiration for all. The countless acts of heroism that were displayed by physicians and other health care personnel throughout the COVID-19 pandemic are a powerful testament to the professional ethos that has endured for centuries. Despite the many intrusions into the practice of medicine, physicians and other health care professionals remain steadfast in answering the call, responding to the crisis, looking beyond themselves to a higher purpose, and ensuring that patients receive compassionate care – even under the most difficult of circumstances. I am honored and humbled to serve at their side.

COUNTY MEDICAL SOCIETY NEWS Bibb County Medical Society

by Dale Mathews, Executive Director The Bibb County Medical Society (BCMS) has not been able to hold in-person society meetings in the spring or summer due to the COVID-19 pandemic. BCMS has been encouraging citizens in Central Georgia to wear face coverings. BCMS sent letters to Georgia Gov. Brian Kemp and Macon-Bibb County Mayor Robert Reichert to address the medical importance of wearing masks during a pandemic. BCMS also distributed a news release addressing the urgent need to wear face coverings and for patients to take other precautions, and BCMS President Zach Lopater, M.D., was interviewed by a local TV station on the topic.

DeKalb Medical Society

by Melissa Connor, Executive Director A free ‘Medical Cannabis in Georgia’ dinner meeting that the DeKalb Medical Society (DMS) was scheduled to host for its members in the fall will be rescheduled in the first quarter of 2021. The event is being sponsored by Curaleaf (curaleaf.com), which is a medical cannabis company. DMS will distribute details once the event has been rescheduled. Contact Melissa Connor at mconnor@pami.org with questions or to join DMS.

Muscogee Medical Society

by Dan Walton, Executive Director The Muscogee County Medical Society’s (MCMS) Board of Directors is monitoring the COVID-19 outbreak and will resume the society’s monthly meetings once it determines it is safe to do so. Go to www. muscogeemedical.org for details about MCMS and call Dan Walton at 706.733.1561 with questions.

Richmond Medical Society

by Dan Walton, Executive Director The Richmond County Medical Society’s (RCMS) Board of Directors is monitoring the COVID-19 outbreak and will resume the society’s monthly meetings once it determines it is safe to do so. Go to www. richmondcountymedicalsociety. org for details about RCMS and call Dan Walton at 706.733.1561 with questions.

MEMBER NEWS

Anurag Sahu, M.D., and Kenneth Taylor, M.D., are members of the 2021 ‘Leadership Atlanta’ class. Dr. Sahu is an associate professor of medicine with Emory Healthcare and a member of the MAG Foundation’s Board of Trustees, while Dr. Taylor is a cardiologist with Piedmont Healthcare.

Sudhakar Jonnalagadda,

M.D., was recently installed as the 37th president of the American Association of Physicians of Indian Origin (AAPI) – which is the “largest ethnic medical body in the U.S.” Dr. Jonnalagadda is a boardcertified gastroenterologist/ transplant hepatologist in Douglas and a graduate of the MAG Foundation’s Georgia Physicians Leadership Academy.

SPECIALTY MEDICAL SOCIETY NEWS Georgia Academy of Family Physicians

by Tenesha Wallace Hood, Director of Communications and Public Health The Georgia Academy of Family Physicians (GAFP) is scheduled to honor five of its members with awards during the organization’s virtual 2020 ‘Annual CME Meeting’ on November 13-14. This includes Beulette Hooks, M.D., FAAFP, of Midland (Family Physician of the Year), Julie Dahl-Smith, D.O., FAAFP, of Augusta (Family Medicine Educator of the Year), Mike Busman, M.D., FAAFP, of Americus and Eddie Richardson Jr., M.D., FAAFP, of Eatonton (Community & Volunteer Services Awards), Chivon Stubbs, M.D., of Atlanta (Resident of the Year), and Ryan Smith, M.D., of Atlanta (Keith Ellis Resident Award). Visit www.gafp.org or call Tenesha Wallace Hood at 800.392.3841 for information on GAFP.

Georgia Chapter of the American Academy of Pediatrics

by Kasha Askew, Director of Membership & Education The Chapter has sent weekly email updates that featured resources and tools to its members and non-members since the beginning of the pandemic. The Chapter also offered free virtual learning via webinars on telehealth, COVID-19, immunization, breastfeeding, and more. These were recorded and are available at www.gaaap. org. The Chapter’s fall CME meeting, ‘Pediatrics on the Parkway,’ will be held virtually on Saturday, October 31 and Sunday, November 1. Rebecca Reamy, M.D., from Columbus is this year’s program chair. The program will feature presentations on dermatology, adolescent OB-GYN, headaches and seizures, and a ‘Martin Michaels Advocacy Lecture’ by American Academy of Pediatrics President Sally Goza, M.D., who is from Fayetteville. Participants will also have access to on-demand, preconference seminars on pediatric orthopedics and sports medicine; coding and practice management; hospital medicine; and office emergencies and disaster preparedness. The program will also feature a virtual exhibit hall and a virtual poster hall. Go to www.gaaap.org to register. Having thanked its outgoing president Terri McFadden, M.D., for her leadership and hard work, the Chapter installed Hugo Scornik, M.D., of Conyers as its president on July 1.

Georgia Chapter of the American College of Cardiology

by Melissa Connor, Executive Director The Georgia Chapter of the American College of Cardiology’s 2020 Annual Meeting is scheduled to take place at The Ritz-Carlton Reynolds, Lake Oconee in Greensboro on November 20-22. The event will include

sessions on CV risk and prevention, the diagnosis and treatment of ischemic heart disease, case-based viewpoints, congenital heart disease, cardiovascular imaging, diversity and inclusion, and instructive cases. It will also feature fellow poster presentations and an alwayspopular ‘Jeopardy’ competition. Contact Melissa Connor at mconnor@pami.org with questions or to join GA-ACC.

Georgia College of Emergency Physicians

The Georgia College of Emergency Physicians will host the ‘Georgia Emergency Medicine Leadership and Advocacy Conference’ (GEMLAC) at The Ritz-Carlton Reynolds, Lake Oconee in Greensboro on December 3-4. Go to www.gcep.org or contact Karrie Kirwan at karrie@ theassociationcompany.com for details.

Georgia Gastroenterologic and Endoscopic Society

by Dan Walton, Executive Director The Georgia Gastroenterologic and Endoscopic Society’s (GGES) annual meeting that was scheduled to take place in September has been cancelled because of the COVID-19 pandemic. Go to www.ggesonline.org for more information or to join GGES.

Georgia Neurosurgical Society

The Georgia Neurosurgical Society’s (GNS) ‘Fall Meeting’ is scheduled to take place at The Ritz-Carlton Reynolds, Lake Oconee in Greensboro on December 5-6. In addition to the in-person meeting, a virtual component is available. Go to www.ganeurosurgical. org or contact Karrie Kirwan at karrie@theassociationcompany. com with questions or to join GNS.

Georgia Society of Otolaryngology/Head & Neck Surgery

The Georgia Society of Otolaryngology/Head & Neck Surgery’s ‘Fall Meeting’ will take place at The Ritz-Carlton Reynolds, Lake Oconee in Greensboro on December 5-6. Go to www.gsohns.org or contact Karrie Kirwan at karrie@theassociationcompany. com with questions.

Submit your county medical society, member or specialty society news to Tom Kornegay at tkornegay@mag.org. Also contact Kornegay with any corrections, which will run in the next edition of the Journal. The Journal reserves the right to edit submissions for length and clarity. Bolding recognizes the physicians who are active MAG members at the time the Journal was prepared. Go to www.mag. org/membership to renew your MAG membership.