Georgia Order Limits Liability of Healthcare Institution Staff During COVID-19 State of Emergency

In an effort to provide healthcare institutions and medical facilities “additional flexibility,” Georgia Governor, Brian P. Kemp, issued a new Executive Order limiting the liability of employees, staff, and contractors of healthcare institutions and medical facilities during the Coronavirus Disease 2019 (“COVID-19”) Public Health State of Emergency.  Following similar actions taken by other states, the Governor issued an Order for “Designation of Auxiliary Emergency Management Workers and Emergency Management Activities,” on April 14, 2020.  The Order extended certain protections from liability for death or injury, which are generally reserved for the State and its agents pursuant to the Georgia Emergency Management Act of 1981 (the “Act”).  The Order was effective upon signature, on April 14, 2020 at 2:25 PM, and will remain in effect through the end of the Public Health State of Emergency.

The terms “healthcare institutions and medical facilities” are defined broadly to include hospitals, nursing homes, assisted living communities, personal care homes, ambulatory surgical treatment centers, specimen collection centers and health testing facilities, birthing centers, imaging centers, facilities for treatment of traumatic brain injury, and emergency receiving facilities.¹  The Order does not appear to provide protection in connection with services provided in a home setting.

The Order specifically applies to healthcare institution and medical facility “employees, staff, and contractors” and “services.”  The Order temporarily expands the Act’s definition of “auxiliary emergency management workers” to include employees, staff, and contractors of healthcare institutions and medical facilities and considers services provided or performed during the Public Health State of Emergency by healthcare institutions and medical facilities to be “emergency management actives.”  Under the Act, auxiliary emergency management workers and persons engaged in emergency management activities may not be held liable for the death of or the injury to person or for damage to property, except in cases of willful misconduct, gross negligence, or bad faith.²  Notably, the Order does not restrict the limited liability to COVID-19 related care or treatments; rather it extends protections for all “services provided or performed” by healthcare institutions and medical facilities during the Public Health State of Emergency.

The Georgia Order follows similar executive actions from other states.  For example, on April 1, 2020, Illinois issued an Executive Order, which provided health care facilities, health care professionals, and health care volunteers immunity from civil liability for any injury or death caused by any act or omission by a health care facility providing services in response to the COVID-19 outbreak, unless such injury or death was caused by gross negligence or willful misconduct.

AGG continues to recommend that all providers maintain documentation of any changes from the standard practice of care as well as reasons for deviation from standard policy.  Though tedious, these documentation efforts may help support the reasonableness or necessity for those changes in the event that the appropriateness of these actions are questioned in the future.  Similarly, AGG recommends pandemic-specific addendum to admission agreements so that the parties to the agreements are clear as to their various roles during the pandemic.

AGG will continue to monitor any changes to the Order and related guidance.  For more information on the new Georgia Order or similar orders in other states, please contact Hedy S. Rubinger or Charmaine A. Mech.

[1] See Ga. Code Ann., §§ 1-7-1(4)(A), 31-7-1(4)(C)-(G), and 31-7-1(5).

[2] Ga. Code Ann., § 38-3-35.