Georgia Medical Malpractice Cases in the Time of COVID-19

Prior the COVID-19 pandemic, in order to successfully bring a medical malpractice claim in Georgia, a plaintiff was required to offer expert medical testimony to the effect that the defendant physician or healthcare provider failed to exercise that degree of care and skill which would ordinarily have been employed by the medical profession generally under the circumstances.  See Boling v. Foster, 254 Ga. App. 374 (2002).  The legal duty owed by medical professionals was to exercise “a reasonable degree of care and skill.”  See O.C.G.A. § 51-1-27.  This is the standard that applied in the vast majority of medical malpractice cases.  A narrow exception existed for the provision of emergency medical care in a hospital emergency department or obstetrical department, where it is necessary to prove by “clear and convincing evidence” that the physician or healthcare provider’s actions showed “gross negligence.”  See O.C.G.A. § 51-1-29.5(c).

This threshold for proving liability in Georgia medical malpractice cases changed with Governor Kemp’s Executive Order entered April 14, 2020 concerning the Covid-19 crisis.  Executive Order 04.14.20.01, limits liability for any harm done by the employees, staff, and contractors of healthcare institutions and medical facilities  during the “Public Health State of Emergency” as to negligence, but not gross negligence, regardless of whether such service is related to the Public Health State of Emergency.  “Gross negligence” is the absence of even slight diligence, and slight diligence is defined as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.”  Gliemmo v. Cousineau, 287 Ga. 7 (2010).  The Executive Order applies to all clinics, hospitals, nursing & assisted living facilities, as well as ambulatory surgical centers.

The Executive Order further provides that “The employees, staff, and contractors of healthcare institutions and medical facilities shall be considered auxiliary emergency management workers pursuant to Code Section 38-3-35.”  O.C.G.A. § 38-3-35(b) provides that auxiliary emergency management workers are immune from liability for harm, including death, sustained by persons as a result of “emergency management activity”, unless such emergency activity causing the harm was due to willful misconduct, gross negligence, or bad faith.  O.C.G.A. § 38-3-3(2) defines “emergency management” broadly, as “the preparation for the carrying out of all emergency functions … to prevent, minimize, and repair injury and damage resulting from emergencies … These functions include, without limitation … emergency medical services … together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions.”  This means that “auxiliary emergency management workers” are immune from liability even if they acted negligently in providing medical care to a patient in Georgia.  Instead, in order to recover a plaintiff must prove that the medical care provided constituted gross negligence.

The key takeaway from Governor Kemp’s Executive Order is that in order to bring a medical malpractice case in the State of Georgia, where the conduct at-issue took place during the period of the emergency, hospital employees and contractors are recognized as “emergency management workers,” and a plaintiff will be required to prove gross negligence, willful misconduct, or bad faith in order to prove liability for personal injury or death.  This applies regardless of whether the alleged medical malpractice involved treatment for COVID-19, or something totally unrelated to the pandemic.  Gross negligence is a much higher standard than ordinary negligence.  Therefore, proving malpractice and successfully recovering for a claim for substandard medical care provided during the period of the emergency will be more difficult.  Attorneys and potential claimants should be mindful of this heightened standard for proving liability when determining whether the file a medical malpractice lawsuit in Georgia for treatment during the COVID-19 emergency period.  Attorneys must also be mindful of the heightened gross negligence standard when preparing the Complaint and obtaining the expert affidavit required under O.C.G.A. § 9-11-9.1.

If you believe that you or a loved one has been the victim of medical malpractice in Georgia, call one of the medical malpractice attorneys at Finch McCranie LLP at 404-658-9070 for a free consultation.  We handle all of our medical malpractice cases on a contingency fee basis, meaning you will never pay us out-of-pocket, and we only get paid if we successfully recover for you.

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