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Gov. Kemp limits legal liability of hospitals, staff during pandemic

Gov. Brian Kemp delivers updates and answers journalists’ questions during a press conference outside of the State Capitol on Monday afternoon April 13, 2020. Listening in the background is Dr. Kathleen Toomey, commissioner of the Georgia Department of Public Health. BEN@BENGRAY.COM FOR THE ATLANTA JOURNAL-CONSTITUTION
Gov. Brian Kemp delivers updates and answers journalists’ questions during a press conference outside of the State Capitol on Monday afternoon April 13, 2020. Listening in the background is Dr. Kathleen Toomey, commissioner of the Georgia Department of Public Health. BEN@BENGRAY.COM FOR THE ATLANTA JOURNAL-CONSTITUTION

Hospitals, nursing homes welcome the protection. Order is a ‘get-out-of-jail-free card,’ says one critic.

Gov. Brian Kemp has used his emergency powers to protect Georgia’s strained hospitals and medical workers from lawsuits related to the care they provide during the coronavirus pandemic.

Hospital lobbyists thanked the governor for the executive order, signed Tuesday, but others are questioning whether the governor has gone too far.

The order designates hospitals and front-line medical workers “auxiliary emergency management workers” and provides them immunity from personal injury lawsuits during the crisis should a patient be injured or die under their care. Kemp says the order provides necessary protections to healthcare workers in the state.

“As healthcare facilities battle COVID-19 in communities across Georgia, they face incredible challenges. Healthcare workers are making personal sacrifices to provide critical care to patients in need and save lives. These Georgians — some coming out of retirement or reentering the workforce just to lend a helping hand — are true heroes among us. I’m proud to support them,” he said.

Kemp’s press secretary, Cody Hall, said that Kemp spoke to hospital CEOs who expressed need for this order.

Along with hospitals, the order also includes surgical and diagnostic centers, mobile clinics, rehabilitation centers, as well as nursing homes and assisted living communities. And it doesn’t limit legal immunity to issues related to COVID-19.

Bill Holbert, an Atlanta attorney who represents clients with neglect and abuse claims against nursing homes, said Kemp’s order is so broad that it would cover all types of possible malpractice. That’s too much, he said, especially for an industry like nursing homes, which had a troubling track record prior to the pandemic.

Last year, The Atlanta Journal-Constitution published an investigation detailing neglectful and unsafe conditions at personal care homes across the state. Under the order, Holbert said he fears institutions will claim immunity for existing deficiencies in care that are unrelated to the pandemic.

“You’ve already got issues in a lot of these facilities with care, and now you are giving them a get-out-of-jail-free card,” he said. “To give them blanket immunity for services they area already being paid to perform? My feeling is it won’t hold up in court.”

Dozens of deaths from COVID-19 have occurred in Georgia’s nursing and long-term care facilities.

Tony Marshall, president of the Georgia Health Care Association, which represents the nursing home industry, said the crisis has forced the industry to adopt new standards of care, including staffing shortages, ending communal dining and reassigning rooms to protect against the spread of infection. In a highly regulated industry like nursing homes, Marshall said these changes can prompt lawsuits.

“It effectively recognizes that the normal standards of care have to be deviated from in this crisis,” he said of the order. “Without that you would automatically lose every lawsuit.”

Gov. Brian Kemp delivers updates and answers journalists’ questions during a press conference outside of the State Capitol on Monday afternoon April 13, 2020. BEN@BENGRAY.COM FOR THE ATLANTA JOURNAL-CONSTITUTION
Gov. Brian Kemp delivers updates and answers journalists’ questions during a press conference outside of the State Capitol on Monday afternoon April 13, 2020. BEN@BENGRAY.COM FOR THE ATLANTA JOURNAL-CONSTITUTION

Others though believe the order is just what the industry needs as it struggles to respond to an wave of desperately ill patients. The Georgia Hospital Association thanked Kemp in a statement and made its case for why such protections are needed as medical facilities open temporary units, while sharing staff, expertise and supplies.

“These efforts are necessary and warranted, but they each come with a great deal of risk to providers,” the GHA said in its statement. “Under this Executive Order … the dedicated staff and facilities providing these emergency management activities will be afforded certain limited liability protections under the Georgia Code.”

The order does not protect staff or facilities from liability in the case of intentional harm or “gross negligence,” a legal standard that can trigger punitive damage awards in liability cases.

Kemp’s order comes as the Trump administration pushes states to reduce regulatory obstacles to responding to the virus. In a letter last month, U.S. Health and Human Services Secretary Alex Azar advised the nation’s governors to examine their liability protections for health care workers and to work with insurers to make sure they were appropriately covered by malpractice insurance.

New York, New Jersey and Illinois have passed similar immunity measures, but they are generally tailored for medical care explicitly related to the pandemic.

The Georgia medical industry consistently pushes state lawmakers to put new limits on patient lawsuits. This year, a push to massively reform the system died when enough Republican lawmakers joined with Democrats to quash it in the State Senate.

Liz Coyle, executive director of the consumer-focused watchdog Georgia Watch, said she sees the need to support health care workers as they struggle to confront the COVID-19 pandemic, but she said it should not be used as a backdoor to a failed tort reform effort.

“It is important that we not use this pandemic to circumvent that debate,” she said. “We trust that this is not the intention at this time.”