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CAN HEALTHCARE WORKERS BE SUED FOR MALPRACTICE DURING THE COVID-19 EMERGENCY PERIOD?

This post was created at 11:30am on Thursday, April 16, 2020. We believe that it was accurate and up to date as of that time. However, because of the rapid, daily changes in the political, business, and legal climates, we cannot guarantee the accuracy of this post. 

On April 14, 2020 at 2:25pm, an Executive Order was issued by Governor Kemp designating healthcare institutions and workers as Auxiliary Emergency Management Workers pursuant to O.C.G.A. § 38-3-35, which creates immunity from liability for personal injury or property damage sustained by anyone appointed or acting as a volunteer management worker or engaged in emergency management activity. This means that hospitals, healthcare workers, and doctors may be immune from liability for acts of malpractice occurring between March 14, 2020 and the date the Public Health State of Emergency Order is lifted. However, this immunity only applies to hospitals and medical facilities actively engaging in an “emergency management activity” at the time the injury or damage occurs. Similarly, only those acts occurring while these healthcare facilities or healthcare workers are actively engaged in an “emergency management activity” will be immune from liability. However, acts of willful misconduct, gross negligence, or bad faith resulting in an injury or damage are not subject to immunity per O.C.G.A. § 35-3-35(b).

Governor Kemp’s Executive Order was intended to provide hospitals and medical facilities with more discretion to make difficult and necessary decisions when providing treatment to those with COVID-19. For instance, if a hospital or facility actively treating positive COVID-19 patients experiences a shortage of ventilators and has to make the difficult decision of which patient to provide this necessary, life-saving treatment to, they will be legally protected from liability in the event their decision results in the death of the patient who did not receive the ventilator. In layman’s terms, if you or a loved one suffer an injury or damage, even one resulting in death, during the emergency period, you may not be able to finally recover if the injury occurred as a direct result of a healthcare facility or worker’s efforts to manage the COVID-19 pandemic. However, this is a very limited set of circumstances and most claims for medical malpractice occurring during this emergency period will not be subject to immunity.

It is not our intent to give legal advice or to create an attorney/client relationship. If you need legal advice, please consult an attorney. If you have questions about your particular situation, please call or e-mail attorney Miranda Hanley at (770) 389-4864 or mhanley@smithwelchlaw.com.

Smith Welch Webb & White