No Sun Outlasts Its Sunset: COVID Liability After The Sunset of Georgia’s Immunity Protections

Georgia’s COVID-19 immunity protections for nursing facilities, providers, and businesses will sunset on July 14, 2022, so does this mean dark litigation days lie ahead?

At the height of the COVID outbreak in the spring of 2020, the Georgia General Assembly passed legislation providing COVID-19 liability protections for healthcare facilities, healthcare providers, property owners, and others. The legislation, Senate Bill 359, expanded upon Governor Kemp’s April 14, 2020 Executive Order limiting the liability of employees, staff, and contractors of healthcare institutions and medical facilities during the Public Health State of Emergency.

In Senate Bill 359, named the “Georgia COVID-19 Pandemic Business Safety Act,” the General Assembly recognized that healthcare institutions, facilities, and workers “require additional flexibility to provide the critical assistance and care needed by this state during the unprecedented COVID-19 pandemic.” The Bill shielded entities from legal liability for COVID-19 liability claims unless a claimant proves “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.” These standards require a higher level of proof by plaintiffs than in an ordinary negligence claim. In addition, the legislation provided protections for “acts or omissions by a healthcare facility or healthcare provider in arranging for or providing healthcare services or medical care to the claimant resulting in injury or death of the claimant for COVID-19 or where the response to COVID-19 reasonably interfered with the arranging for or the providing of healthcare services or medical care at issue to the claimant.” (Emphasis added.) This last italicized clause was important, as it offered liability protection for alleged injuries other than the transmission of COVID-19 that are attributable to a facility’s response to COVID-19. For example, if a facility struggled to retain staff because of the COVID-19 crisis, the Bill offered some protection for tangential claims (e.g., falls) that were allegedly due to the lack of sufficient staffing.

In addition to the broad liability protections, the Bill also established a rebuttable presumption of assumption of the risk by the claimant when a healthcare facility or a premises has posted at a point of entry to the premises, a warning sign stating the following:

Warning 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 this risk by entering these premises.

This meant that if a property owner posted this language, there was a legal presumption that all visitors assumed the risk of contracting COVID-19.

The 2020 COVID immunity legislation contemplated a one-year duration and therefore included an expiration date of July 14, 2021.  With COVID and its variants persisting through the spring of 2021, however, the General Assembly passed HB 112, which extended the immunities for another year and established a July 14, 2022 sunset date.  Thus, while some light still remains, the sunset is fast approaching, leaving providers to wonder if they will soon find themselves in the dark facing COVID-related litigation.

Post-Sunset Litigation Environment

There is some light remaining. The sunset provision does not turn back the clock to allow plaintiffs to pursue COVID cases all the way back to the start of the pandemic.  Georgia’s legislation, as extended, provides that the immunity protections apply to all causes of action accruing until July 14, 2022, so even after the sunset, facilities will continue to enjoy the immunity protections for infections through July 13, 2022.

Once the COVID immunity protections expire and for cases accruing after July 14, 2022, Georgia will revert to traditional legal theories and defenses for establishing liability against nursing facilities. In general, a plaintiff seeking to hold a provider liable for negligence must establish that:  (i) the provider breached a duty, and (ii) there is a causal connection between the breach and the plaintiff’s injury (e.g., the COVID infection). The plaintiff bears the burden of proof and, therefore, must establish that the COVID infection resulted from viral contact brought about by the facility, rather than a source other than the facility. This is not an easy task.

The very nature of COVID-19 presents a host of challenges for plaintiffs, including the virus’s virulent transmissibility and the lengthy incubation period between exposure and the development of symptoms. For residents who are mobile, who leave the facility, or who receive regular visitors, the challenge of establishing the source of an infection would be daunting. What expert could trace a viral infection to a particular source on a particular day? And even then, the plaintiff would still have to establish the second prong of a negligence claim, i.e., that the infection was caused by the negligence of a facility or its staff. Tying an infection to a particular act or failure to act by a facility (or, in other words, establishing a chain of causation) presents an even more challenging hurdle for a plaintiff.

But what about a patient who is immobile, does not receive visitors, and does not leave the facility—would it be enough for the plaintiff merely to show that the patient became infected while at the facility? Probably not. Some states recognize the legal doctrine of res ipsa loquitur, which permits a jury to draw an inference of negligence in the absence of a finding of a specific cause of the occurrence when an injury is of the kind that does not ordinarily happen unless the defendant was negligent in some respect and other responsible causes including conduct of the plaintiff are sufficiently eliminated by the evidence. Georgia courts, however, have rejected the doctrine of res ipsa loquitur in medical malpractice suits. See Kapsch v. Stowers, 209 Ga. App. 767 (1993); Austin v.  Kaufman, 203 Ga. App. 704 (1992).  An unintended result does not raise an inference of negligence. Howell v. Jackson, 65 Ga. App. 422, 423 (1941). And even if the doctrine were applied in the context of an ordinary negligence claim, the plaintiff would still face the challenge of eliminating other responsible causes. For example, the plaintiff would have to prove that the virus did not come from a properly screened visitor to the facility who was visiting another resident. Given the myriad ways that a plaintiff could catch the highly contagious coronavirus from a source other than the nursing facility staff, plaintiffs will struggle to prove a direct causal link.

Other Infection Cases in Georgia

As you might suspect, COVID is not the first infectious disease to spawn a lawsuit.  In other contexts, Georgia’s appellate courts have been reluctant to impose liability against healthcare providers stemming from an infection. For example, in a staph infection case, the Court of Appeals found that the requirements for a res ipsa claim were not met when there was no evidence that the infection did not ordinarily occur in the absence of negligence, especially when coupled with evidence that the staph could have come from the patient’s own skin just as easily (or more easily) than from surgical equipment. Chavous v. Richmond Cnty. Hosp. Auth., 169 Ga. App. 473, 473 (1984). The Court explained:  “[I]t is impossible for a hospital to be in complete control of a staph germ which may be brought in by the patient. Consequently, since a hospital cannot be said to be in complete control of that which the patient himself may carry, it follows that res ipsa loquitur cannot be applied.”  Id., quoting Bartlett v. Argonaut Ins. Cos., 258 Ark. 221, 224 (1975).

Despite these challenges in proving a COVID case, don’t think that plaintiffs and aggressive plaintiff attorneys will not try. In fact, they already have. One early Georgia COVID case targeted an assisted living facility, alleging that the facility failed to restrict outside visitation and that workers continued to work even after COVID exposure and failed to wear personal protective equipment. And attorneys in states lacking Georgia’s immunity protections have been filing numerous COVID lawsuits. COVID lawsuits nationally total over 15,000, with California and New York competing for the “honor” of the most litigation at over 2,000 cases each.

Even in Georgia, in pre-COVID infection cases, plaintiffs have pursued facility-wide infection theories, seeking discovery of all patient’s medical records who had similar infections to that of the plaintiff. See Cobb Cnty. Kennestone Hosp. Auth. v. Martin, 208 Ga. App. 326, 327 (1993). In this Martin case, the Georgia Court of Appeals allowed the plaintiff to access medical records of patients who incurred infections around the same time as the plaintiff’s infection.

The Martin case provides a potential glimpse into how a plaintiff might pursue a COVID infection case in Georgia. As discussed above, proving that a single resident became infected because of negligence by the facility would be challenging. But what if there is an outbreak at the facility resulting in numerous residents becoming infected? The plaintiff or plaintiffs might try to capitalize on a facility-wide outbreak to establish the causal link, arguing that it is more likely than not that an infection occurred at the facility because other residents also became infected. Perhaps, but of course, they would still have to prove that the infection resulted from some negligence by the facility. It would not be enough to show that a resident contracted an infection while out at a doctor’s appointment and then unknowingly spread the virus to others during routine interactions in the dining hall or at group activities.

Surveys and Citations

The facility outbreak cases may become more challenging, however, if the facility receives a negative survey report with infection and prevention control citations. In the wake of the pandemic, F880 infection citations ballooned, with over 180 immediate jeopardy tags in 2020, a rate triple that of 2019. Surveyors cited facilities that had no way of initially knowing about coronavirus, such as the Kirkland, Washington facility that became an epicenter in February of 2020.

Historically in Georgia, nursing homes were subject to claims based on the theory of “negligence per se,” a legal doctrine that establishes negligence as a matter of law if a defendant violates a law that is designed to protect against the type of harm caused by the defendant’s conduct, and the plaintiff is someone the statute is designed to protect. Negligence per se is a legal doctrine deeming a defendant automatically “negligent” if it acts inconsistently with a statute or regulation. It is a strict liability doctrine and an end-run around the traditional requirement that a plaintiff must prove a healthcare provider breached a professional standard of care.  Using this theory, plaintiffs would introduce a survey citation against a defendant nursing home, and the court would instruct the jury that the nursing home was negligent if it violated the regulation. Because of the weight of the surveys in the eyes of jurors, cases with negative survey results posed a great risk for facilities because of the negligence per se theory. The practice of using hundreds of vague federal and state regulations as a courtroom measuring stick placed nursing homes at a distinct disadvantage.

But as we know, surveys are often flawed, with inconsistent application of regulations, use of standards not included in the regulations, reliance on hearsay and unidentified individuals, and often completed by surveyors who lack clinical training. Because of these flaws in the survey process and the imbalanced weight of survey reports, in 2015, GHCA worked to pass legislation in Georgia restricting the use of negligence per se claims against nursing homes. The law restricts the use of federal conditions of payment for nursing homes (often referred to as the “OBRA” regulations) as well as state licensing regulations from being used as the basis for a claim of negligence per se. While mitigating the negligence per se theory, the law does allow the court to take judicial notice of the OBRA regulations and admit them into evidence if found to be relevant to the harm alleged in the complaint.  However, the introduction of the actual survey reports is not covered in the statute.

Minimizing Exposure Going Forward

With the impending sunset, how can facilities minimize their COVID litigation exposure? For starters, implementing and following robust infection control practices to help prevent outbreaks is a must. And this means more than just drafting policies that sit on a shelf. In fact, from a liability perspective, if policies aren’t going to be followed, the facility is better off not adopting policies at all, so that plaintiffs won’t try to use the policies against you to establish an alleged breach.  Using narrowly tailored policies that are realistic and that allow professional judgment and flexibility is an ideal approach from a defense standpoint. Once adopted, the facility should periodically review and revise those policies as appropriate and maintain documentary evidence that the facility was complying with guidance from CMS, CDC, and the state at relevant times and as the guidance continues to change.  Also, the facility should assign responsibility to a specific person (e.g., infection preventionist, DON, or administrator) to track guidance and ensure the facility adapts in real time, with commensurate documentation. The facility should also utilize its QAA committee and QAPI program to help ensure compliance with infection control regulations and guidance.

Of course, even with the best infection control practices, infections can and will still occur with no negligence on the part of the facility. As discussed earlier, the law does not require facilities to be the guarantors of residents’ safety or guard against all infections—that’s impossible. So, knowing that infections will occur, it is important to document the efforts that the facility took to reduce infections. And it is also important to document on residents’ own potential exposure to the coronavirus. For example, if a resident insists on having frequent visits from family members who refuse to wear masks, staff should document this in the resident’s records. Or, if a resident leaves frequently for family gatherings or other events, document this as well. If the resident later contracts COVID and attempts to blame the facility, this documentation may prove helpful in defending against a claim.

Another defensive measure may be to continue using assumption of risk agreements and signage. Facilities may include assumption of risk language in their admission agreements or stand-alone agreements with residents. Also, we discussed earlier that the Pandemic Business Safety Act included statutory language for notices outside facilities and businesses. You’ve no doubt seen these large signs at businesses in your community and throughout Georgia. While the statutory protections from that specific language are sunsetting, facilities may still want to consider alternative notices to show that they advised visitors and residents about the risk of COVID. For example, a notice could read:

WARNING:  There are increased risks of contracting COVID-19 and its variants while indoors and in healthcare facilities. You are assuming this risk of contracting COVID by entering these premises. By entering this facility, you agree that the facility and its staff shall have no liability for any injury, damages, or death resulting from COVID-19 or its variants. If you are infected with COVID or are sick, please do not enter this facility or notify a staff member immediately so that we may implement additional precautions for your care and the care of our residents and staff.

If a facility does post notices, it is best to post them at each entrance to the facility and take time-stamped photos (most phones do this automatically) of the signs so that the facility can later prove when the notices went up.

Another defensive measure will include responses to survey reports. Given surveyors’ exploding use of infection prevention and control citations, facilities should carefully consider how to respond to a citation. Any plan of correction should include a disclaimer that the facility does not acknowledge any wrongdoing or admit any liability; rather, submission of the plan is required by federal law. The plan of correction can also highlight inaccuracies in the 2567. In addition, it is important not to overpromise in a plan of correction. Like our discussion earlier about policies, be careful not to commit to more than the facility and staff are able to accomplish consistently. If the facility overpromises but then later slacks in its adherence to the plan, a plaintiff’s attorney could try to capitalize on this. Instead, consider including sunsetting provisions of your own in the plan of correction, with aggressive monitoring at the beginning and a planned reduction and titration over the course of several months. If alleged survey deficiencies are factually or legally unsupportable, the facility should consider challenging the survey through IDR, IIDR, and appeal.

Conclusion

While the sun is setting on Georgia’s COVID immunity protections, providers are not without hope. Infection cases are inherently difficult to prove, and the facility will have many defenses at its disposal. But it is important to position yourself as best as possible. Of course, work hard to prevent infections, but also carefully craft your policies, assumption of risk agreements, and survey responses. With these and other measures, facilities will hopefully enjoy some continued sunlight, or at least a full moon.