On Sine Die (the last day of the legislative session), the Georgia General Assembly passed SB359 to provide liability protections to healthcare providers and businesses in the state. As COVID-19 continues to attack the community, healthcare facilities and providers find themselves on the frontlines of the defense and are being impacted in myriad ways, thus the immunity would provide significant relief from litigation. The legislation, which was a compromise between interested groups such as healthcare providers, businesses, and the plaintiffs’ bar, creates an extremely high hurdle for lawsuits brought by an individual or their estate seeking to recover damages from a COVID-19 liability claim. The legislation started out as providing immunity for only hospitals and healthcare providers, but evolved to become much broader. The law will become effective either upon the Governor’s approval or on August 7, 2020, whichever occurs first.
Protections for Healthcare Facilities and Providers
The liability shield in Senate Bill 359 protects healthcare facilities and providers against three types of COVID-19-related claims:
- Transmission, infection, exposure or potential exposure of COVID-19
- Medical malpractice related to COVID-19
- Product liability claims related to personal protective equipment (PPE) or sanitizer
For each of those categories, a person bringing a claim against a healthcare facility or provider must show a heightened standard of gross negligence, willful or wanton misconduct, recklessness, or intentional infliction of harm. For medical malpractice claims, the heightened standard applies to both the treatment of COVID-19 and when “the response to COVID-19 reasonably interfered with the arranging for or the providing of healthcare services.” For example, if a stroke patient presents at the ER but is unable to receive a timely CT scan because the machine is being disinfected after use by a COVID-19 patient, the hospital would likely not be liable for the failure to provide appropriate medical care to the stroke patient. The liability shield is not intended to be a blank slate to commit malpractice, and some cases will inevitably revolve around what is considered reasonable under the circumstances, but the bill should provide peace of mind to medical providers that they will not face a litany of lawsuits so long as their actions are justifiable in light of a global pandemic.
Senate Bill 359 also creates a rebuttable presumption that a person assumes the risk of transmission or infection of COVID-19 upon entering a healthcare facility, so long as the healthcare facility posts proper notice. Proper notice must be posted at a point of entry in 1 inch Arial font, separated from all other text, and include the following language:
Warning
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 the risk by entering these premises.
The rebuttable presumption, however, does not apply to claims involving gross negligence, willful and wanton misconduct, recklessness, or intentional infliction of harm.
Protections for Other Entities
In addition to protections for healthcare providers, the legislation also contains significant protections for other entities. Except for situations of “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm,” the legislation provides that a person bringing a claim based on the “transmission, infection, exposure, or potential exposure” to COVID-19 faces a rebuttable presumption of assumption of risk in two situations. First, the rebuttable presumption of assumption of risk arises if the business or entity states on any receipt or “proof of purchase for entry” (such as a ticket or wristband) in at least ten-point Arial font:
Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.
Second, in other situations the business or entity is entitled to the rebuttable presumption of risk if the business posts warning language (see warning above in healthcare liability section) in at least one-inch Arial font.
The legislation is broad in several respects. First, the legislation defines entities to which the liability protection applies to include:
any association, institution, corporation, company, trust, limited liability company, partnership, religious or educational organization, political subdivision, county, municipality, other governmental office or governmental body, department, division, bureau, volunteer organization; including trustees, partners, limited partners, managers, officers, directors, employees, contractors, independent contractors, vendors, officials, and agents thereof, as well as any other organization other than a healthcare facility. (emphasis added).
Second, the law does not limit or define the relationship between the claimant who may file such a suit and the entity entitled to the limited liability. The definition of claimant does not contemplate the relationship between the claimant and the business, such as an employer/employee, guest, licensee, agent, etc. Though the first instance of the rebuttable presumption (which requires warning on a receipt or proof of entry) contemplates that the claimant is guest or licensee of entity, the second instance of the rebuttable presumption (requiring the warning language at the entry of the entity) is broad and does not consider the relationship between the claimant and the entity.
The legislation states that it does not modify or supersede the criminal code, the health code and regs, workers comp laws, or emergency management. The limited liability protections apply to causes of action that accrue through July 14, 2021.