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Did Medical Malpractice Lawsuits Survive Covid-19?
The world has experienced widespread repercussions from the Covid-19 pandemic. In previous blogs, we examined the pandemic response’s impact on the Court system in Georgia and the Atlanta metro area as well as the extensions to applicable statute of limitations as a result of the pandemic. But perhaps most significant is the impact the pandemic response had on the legal burden of proof for certain civil claims that rose during the pandemic.
At the start of the pandemic, states across the county, including Georgia, prepared for severe stresses to our emergency rooms, hospitals, doctors, nurses, and entire medical community. Georgia’s medical community deserves our enormous gratitude and support for how they responded to this health emergency.
In anticipation of the medical community’s stresses, Georgia’s Governor and the Georgia Legislature issued orders and passed laws protecting (to a certain extent) the medical community from liability during this unprecedented time.
Pertinent Executive Orders from Governor Brian Kemp
In 2010, well before the pandemic, the Georgia Legislature afforded state emergency workers (such as those responding to natural disasters and other medical emergencies) immunity (i.e., shield) from suit except for conduct which constitutes “gross negligence” or worse. If ordinary negligence is a deviation from what a reasonably prudent emergency responder would do under similar circumstances, gross negligence requires a more severe deviation. O.C.G.A. § 38-3-35. The law was designed to protect state emergency responders from being overly cautious in emergency situations when time is of the essence such that decisions must be made, and actions taken quickly.
On March 14, 2020, Governor Brian Kemp issued an Executive Order declaring a Public Health Emergency on account of Covid-19 which included a number of emergency measures to respond to the pandemic. After declaring a Public Health Emergency, Governor Kemp issued a further executive order on April 14, 2020 stating that “during the Public Health State of Emergency, services provided by healthcare institutions and medical facilities (i.e., every hospital, surgery center, doctor office, etc.) shall be considered emergency management activities under Code Section 38-3-35. Under this executive order, just about every medical provider was given immunity protections afforded to state emergency workers per Code Section 38-3-35. The heightened gross negligence standard applied not only to every medical provider, but also to all medical services, regardless of whether those services had anything to do with Covid-19 care. Many lawyers, including myself, do not believe Governor Kemp had authority to issue such a broad order protecting the entire medical community for all medical related services. However, no Court has made a ruling on this issue to date. Regardless, most interpret this order to have expired by August 31, 2020. Thus, to the extent that it was valid, it likely only applies to medical malpractice claims that arose out of treatment between April 14 2020 and August 31, 2020.
Covid Immunity Law Passed by Georgia Legislature and Signed into Law
While the immunities afforded medical providers under the Governor’s Executive Orders likely expired as of August 31, 2020, Georgia’s legislature passed laws continuing immunities (except for conduct amounting to gross negligence or worse) to certain medical providers under certain scenarios. Georgia’s Covid-19 Pandemic Business Safety Act, which went into effect August 5, 2020, states that “no healthcare facility, provider, entity, or individual shall be held liable for damages involving a Covid-19 liability claim” except for conduct amounting to gross negligence or greater. O.C.G.A. § 51-16-2.
Covid-19 liability claim is defined in the statue broadly. It not only encompasses claims involving the transmission of Covid-19 but may also include situations where a medical provider’s response to Covid-19 interfered with providing medical services to someone who needed medical care wholly unrelated to Covid. There are cases currently pending in trial courts around the state testing the breadth of the protection. Certainly, it applies to someone who claims to have contracted Covid while in the hospital – that is likely not to be a case. But would it also apply to a patient whose died during elective surgery (wholly unrelated to Covid-19) due to anesthesia error? Could the anesthesia team credibly argue that the Covid-19 response reasonably interfered with the team’s ability to deliver care they agreed to deliver for an elective procedure?
These questions are currently being litigated in trial courts across the state. It may be years before Georgia courts issue rulings that have binding authority to establish greater clarity for lawyers and their clients. That said, the right to trial by jury is a right afforded in our federal and state constitutions. A statute which unduly restricts that right would not be Constitutional. Thus, courts tend to narrowly construe statutes which provide certain classes of people broad immunities from suit.
Final Thoughts
Common sense in interpreting the immunities afforded to medical providers during the pandemic should ultimately prevail. It makes sense to protect the medical community from lawsuits when dealing with a novel disease that threatens hundreds of millions of people. If your potential medical malpractice case directly involves Covid (i.e., you or a loved one was injured because a provider either failed to protect you or a loved one from contracting Covid or failed to properly treat Covid), the immunities will likely apply. There is likely no case except in the most egregious of care.
On the other hand, if you or a loved one was injured by a medical provider during treatment (or lack thereof) during the pandemic, which had nothing to do with Covid-19, it is highly unlikely that the immunities will shield the provider from liability. The provider agreed to provide care (presumably in exchange for monetary compensation), representing that it had the requisite supplies, personnel, and competent skill to do so. If the provider caused a person great harm due to a breach in the standard of care in practicing medicine, such a case should survive and proceed. The immunity protections afforded a “Covid-19 liability claim” should not apply. If you believe you have a medical malpractice claim, you should contact an experienced medical malpractice lawyer.
The Baer Law Firm has the experience and resources required to prevail in a medical malpractice case. Our goal is to provide honest advice, quality counsel, and compassionate care throughout the legal process, from consultation to compensation. If you were seriously injured during the pandemic, we encourage you to contact our office at The Baer Law Firm or call us at 404.THE.BAER (404.843.2237).
Attorney Bryan Baer has twenty (20) years of legal experience representing clients in serious and catastrophic personal injury and medical malpractice cases. He has been first chair in more than a dozen twelve-person jury trials on both the plaintiff and defense sides. Recognized as a leader in his legal community, he is frequently asked to speak at legal seminars on trial topics ranging from “Best Practices in Voire Dire” to “Maximizing Damages at Trial” as well as insurance issues such as “Navigating the Insurance Landscape” and “Injury Demands & Negotiations.” Learn more here.