On July 7, 2020, Hanson’s article was featured online at Law.Com’s Daily Report. The content of David’s article is found below:
Late Friday night, June 26, 2020, the Georgia General Assembly passed the “Georgia COVID-19 Pandemic Business Safety Act,” which provides liability protections to businesses throughout Georgia. The bill provides a heightened standard of gross negligence for three types of claims: (1) claims for transmission of COVID-19, (2) claims for medical malpractice related to COVID-19, and (3) claims against manufacturers of personal protective equipment (PPE).
In light of the COVID-19 pandemic and the constantly evolving landscape of public health guidelines, there was rare agreement between trial lawyers, members of the business and healthcare community, and legislators that action should be taken to protect Georgia’s healthcare providers and business owners from frivolous lawsuits. Representative Trey Kelley, Chairman of the House Special Committee on Access to the Civil Justice System, worked tirelessly with stakeholders to reach consensus to provide heightened liability protections while preserving the rights of truly injured parties to bring suit.
Gross Negligence Standard for COVID-19 Related Claims
The operative portion of the bill, O.C.G.A. § 51-16-2, found at lines 99-107, provides a heightened standard of “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.” This heightened standard applies to any “COVID-19 liability claim” which is a defined term in the statute that includes any transmission claim, malpractice claim, or PPE related claim.
Specific to medical malpractice, the heightened standard applies to treatment “for COVID-19 or where the response to COVID-19 reasonably interfered with the arranging for or providing of healthcare services” to the Plaintiff. In other words, any treatment of a COVID-19 patient receives a heightened standard of gross negligence. Similarly, any non-COVID treatment of a patient which was “reasonably interfered with” by the response to COVID-19 will receive the heightened gross negligence standard.
This heightened standard is a significant boon for medical providers and should provide heightened certainty and peace-of-mind when considering the best way to treat patients while maintaining protections against COVID-19. As shown by the application of the emergency medicine gross negligence statute, the heightened standard of gross negligence has not been interpreted in Georgia to provide carte blanche for malpractice, and this statute will likely be interpreted no differently. Importantly, any non-COVID treatment must be “reasonably interfered with” by the response to COVID. It is likely courts will narrowly apply this language to look at both the reasonableness of the COVID precautions taken (e.g., routine sanitizing of equipment, limiting persons in enclosed spaces, spreading patient appointment blocks further apart), as well as whether those precautions can be said to reasonably interfere with the treatment in question.
During legislative committee hearings, two contrasting examples were routinely used to explain who should, and should not, be covered by the liability expansion. In the first, an acute stroke patient presents to the ER, but is unable to be worked into the CT scanner timely because it is being disinfected due to use on a COVID patient. That scenario is intended to be covered by the heightened gross negligence protection. The contrasting example is a patient who is unable to get her prescriptions refilled because her primary care physician’s office is understaffed due to COVID. While the failure to get the refill may be related to COVID, there is a reasonable argument that refilling routine prescriptions should not be adversely impacted by any response to COVID.
Inevitably, some of these claims will involve questions of fact regarding the reasonableness of the measures taken. But at a high level, medical providers should act without fear of lawsuits so long as their actions are reasonable and justifiable in light of the COVID pandemic.
Gross Negligence for Transmission of COVID-19 Claims
One of the primary concerns voiced by the business community and sports teams throughout the state was a potential explosion of lawsuits related to claims that a person contracted COVID-19 on their premises. To address this, the legislature similarly raised the standard for proving such a claim to “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.” This protection additionally applies to healthcare facilities and providers.
The final bill also contains a potential defense of “assumption of the risk” for business owners who post a sign warning of the inherent dangers of contracting COVID-19. Unfortunately, as written the defense provides no additional protections. During the committee process, language was inserted into the defense stating that it would apply “except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.” This “except for” language neuters the potential defense—businesses are already immune from gross negligence, so it is unclear what one is “assuming the risk” of. Presumably they are assuming the risk that the premises owner is negligent, but the bill already extends immunity for negligence.
In light of this “except for” language, the bill provides that choosing not post warning signs will not be admissible. Thus, while a premises owner could certainly post the warning, there seems to be no legal benefit to do so.
Interaction with Existing Executive Orders
One primary concern heading into the legislative session was ensuring that the Governor’s existing Executive Orders (EOs) were affirmed by the legislature to the greatest extent possible. SB 359 accomplishes this in two ways. First, there are legislative findings at the beginning of the bill, lines 9-15, which provide that the intent of the bill is to extend the protections in the Governor’s EOs “beyond the public health state of emergency.” This indicates both that the legislature believes the EOs are “good law” and that the immunity protections in SB 359 should be considered “in addition to” the protections in the EOs.
Second, the bill provides that the immunity provided is “in addition to, and shall in no way limit, any other immunity protections that may apply in state or federal law.” This further confirms that these protections are “in addition to” those in the EOs, as well as any other protections that may exist, such as the “clear and convincing” burden of proof that exists for emergency medical care under O.C.G.A. § 51-1-29.5.
One of the trial lawyers’ primary concerns was ensuring that this bill was limited in scope and time. To that end, the bill has a sunset provision such that it applies only to causes of action accruing until July 14, 2021. If COVID remains a threat in 2021, the legislature is expected to re-visit the issue next session.
The bill has an effective date of August 7, 2020, or whenever it is signed into law by the Governor, whichever comes sooner. With the Governor’s current executive orders recently extended, there should be no lapse in heightened liability protections.
Given the time constraints imposed by the truncated legislative session in June, SB 359 provides strong liability protections to healthcare providers and business owners for COVID-19 related claims.
David Hanson represented the Medical Association of Georgia in the negotiation and drafting of Georgia Senate Bill 359 and provides this insight into the bill.
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