When a COVID-19 or coronavirus infection could have been prevented, or was improperly treated, patients and their families may reasonably feel that their legal rights were violated in the event of a death or critically ill status. Yet, it is also true that health care providers are forced to deal with a virus they don’t fully understand and must make difficult decisions based on limited information. While there have been lawsuits popping up surrounding negligence of nursing homes and similar facilities, a qualified Marietta injury lawyer will tell you there are steps put in place by the government during a pandemic to protect health care workers against personal injury suits.
To protect health care workers and hospitals against legal claims of afflicted family members and their personal injury lawyers, Georgia’s Governor, Brian Kemp, issued an Executive Order on April 14, 2020. You can read the actual order by clicking here. Without digging into the specific laws cited by the Order, it is somewhat difficult to unpackage how the Order actually applies to nursing homes. Essentially, the Order does two things:
- It reclassifies the “employees, staff, and contractors” of “healthcare institutions and medical facilities” to include them in the legal definition of “auxiliary emergency management workers” under O.C.G.A. 38-3-35.
- It converts all services provided by “healthcare institutions and medical facilities” into “emergency management activities” under O.C.G.A. 38-3-35.
In turn, O.C.G.A. 38-3-35 is a complete shield to any liability for personal injury or property damage, “except in cases of willful misconduct, gross negligence, or bad faith.”
These changes are important, because the legal definition of a healthcare “institution” includes “Any building, facility, or place” with at least “two or more beds” and “nursing care, assisted living care, or personal care for periods continuing for 24 hours or longer” including a “nursing home, assisted living community, or personal care home”. See O.C.G.A 31-7-1(4)(A).
How Does This Protect Nursing Homes from a Marietta Injury Lawyer?
By reclassifying nursing homes and their employees as “emergency” caregivers, Gov. Kemp has likely given them a major defense against personal injury lawsuits. Whether Gov. Kemp intended to extend such protections to nursing homes and adult care facilities in unclear. Likewise, the duration of the legal immunity is not clear.
Under the Order, the liability shield appears limited to services provided or performed within the health care or medical facility for the duration of the COVID-19 “Public Health State of Emergency.” Yet, Gov. Kemp then announced that Gyms, fitness centers, bowling alleys, body art studios, barbers, cosmetologists, nail techs and beauty schools will be able to resume operations on April 24, 2020.
Additionally, theaters, private social clubs and dine-in restaurants are permitted to reopen on April 27, 2020, with some restrictions. Does this mean that Georgia’s emergency officially ends on 4-27-20? Will the emergency status go back into effect during a second wave of the virus, or if the first wave does not dissipate, and the number of infected Georgians spikes? These questions remain unanswered, and no answer may be available until we see challenges resolved in the courts, years from now.
Likewise, as written, Gov. Kemp’s grant of immunity to nursing homes may go beyond negligence associated with the coronavirus, extending to negligence merely committed during the emergency time period. Oddly, the liability shield may cover negligence that has nothing to do with coronavirus, because the Executive Order is not narrowly tailored to avoid that outcome.
Constitutional Adherence “Catch-All” Clause
But wait! Does a governor even have the authority to hand out immunity shields this large? When an elected official like Gov. Kemp attempts to make a law, which violates either the Georgia Constitution or the U.S. Federal Constitution, the constitution trumps that law, and the law is thrown out. Gov. Kemp (or his advisors) obviously knew that at least part of his Order might be unconstitutional, as the Order takes care to clarify that any unconstitutional provision can be cut out by the courts without invalidating the parts of the Order which are constitutional.
Both the Georgia constitution and the U.S. Constitution have protections again the taking of life, liberty, or property without due process of law. Absolving nursing homes of liability, absent the plaintiff proving at least “gross negligence,” could be challenged as unconstitutional in the courts. Likewise, Gov. Kemp could issue an Order to clarify that nursing homes, which are typically held to a different standard of care, are not entitled to the immunity granted to hospitals and other medical providers.
Residents of Georgia who do not want to let negligent nursing homes off the hook may wish to contact their local representative, or the governor’s office, urging them to hold nursing homes accountable. Then, call your Marietta injury lawyer to review the options of your specific case.
If you or a loved one have been the victim of nursing home abuse or neglect, don’t go up against their insurance company unarmed. Hire “The Big Guns!” Give us a call at (404) 800-5297 or click to schedule a free consultation with one of our skilled Marietta injury lawyer.