In the last hours of its unusual 2020 legislative session, the Georgia General Assembly passed legislation providing COVID-19 liability protections for healthcare facilities, healthcare providers, property owners, sports promoters, and manufacturers of personal protective equipment. The legislation, Senate Bill 359, augments and expands 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 COVID-19 Public Health State of Emergency. A detailed summary of the Executive Order is available here.
In Senate Bill 359, named the “Georgia COVID-19 Pandemic Business Safety Act,” the General Assembly found 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 shields healthcare facilities, healthcare providers, and other 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. Because of the difficulty in proving how COVID-19 is transmitted, the higher burdens of proof should help protect healthcare providers and others from frivolous claims.
The term “COVID-19 liability claim” is broad and includes the “[t]ransmission, infection, exposure, or potential exposure of COVID-19 to a claimant.” The term also encompasses “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 is important, as it offers 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 struggles to retain staff because of the COVID-19 crisis, it may have a defense under the Bill to a tangential claim (e.g., a fall) that was allegedly due to the lack of sufficient staffing.
In addition to the broad liability protections, the Bill also establishes a rebuttable presumption of assumption of the risk by the claimant when a healthcare facility, a healthcare provider, or a premises has posted at a point of entry to the premises, a warning sign in at least one-inch Arial font placed apart from any other text, stating the following:
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 means that, if a property owner posts such a sign, then there is a legal presumption that all visitors assumed the risk of contracting COVID-19. While a claimant can try to rebut the presumption at trial, the presumption carries serious weight, and a Judge will explain the presumption to the jury. Therefore, healthcare facilities, healthcare providers, property owners, landlords, tenants, and even individuals should begin the process of printing and posting these signs at all entrances to their premises. To document the posting of the signage, we recommend taking pictures of the signage with either electronic or other means of documenting the date and time of the pictures and saving those pictures in your permanent files. Providers may also consider including the notice on their website or admission paperwork to be provided to patients or guests prior to their arrival. While these website and paperwork notices would not supplant the statutory requirement of a physical notice on the entry to the premises, they may help defend claims by patients and visitors who try to rebut their assumption of risk by claiming, for example, that they did not see the posted warnings.
The Bill is effective upon the earlier of signature by Governor Kemp or August 7, 2020. With the anticipation that the COVID-19 crisis will abate, the Bill includes a sunsetting provision, stating that the liability protections apply to causes of action accruing until July 14, 2021, but not to any causes of action accruing thereafter.
Working with the Georgia Health Care Association, Arnall Golden Gregory was involved in the negotiation of the language in the Bill as it progressed through the General Assembly. For AGG’s additional insight of the Bill, please click here. For specific questions about the Bill or this article, please contact Jason E. Bring.