On behalf of the Georgia Hospital Association (“GHA”), AGG Healthcare partner and Post-Acute & Long-Term Care industry team co-chair, Jason Bring, submitted an amicus (friend of the court) brief to the Supreme Court of Georgia, urging the court to review a decision by the Georgia Court of Appeals involving the scope of immunity protections for healthcare workers and facilities during the COVID-19 pandemic. Early into the COVID crisis, at the prompting of the federal government, Georgia Governor Brian Kemp issued an executive order triggering Georgia’s Emergency Management Act (“EMA”). The executive order designated employees, staff, and contractors of healthcare institutions and medical facilities as “emergency management workers” under the EMA, which in turn grants broad liability protections to those workers during an emergency. The following week, with the benefit of those broad protections, Governor Kemp issued another executive order urging healthcare facilities to resume normal operations, including elective procedures, so that healthcare facilities remained available for all patients, whether COVID-positive or -negative.

The case before the Supreme Court involves a patient who, shortly after Governor Kemp’s order for facilities to renew elective procedures, underwent surgery to relieve chronic back pain, including removal of part of the vertebral bone and implantation of a spinal cord stimulator. The patient later sued the surgeon and others, alleging that the surgery did not go as planned. The defendants raised the executive order’s immunity protections as a defense. In reviewing the case, the Court of Appeals first recognized that the executive order, as written, would extend immunity to the surgeon. But the court then proceeded to review the executive order for “context” and to discern Governor Kemp’s intent when issuing the order. Finding that the procedure was “elective” and that the patient was not COVID-positive, the Court of Appeals held that the governor likely did not intend to grant immunity.

In urging the Supreme Court to review the case, GHA showed that, per a long line of Supreme Court cases, the executive order should have been applied as written, without resorting to a review of context or intent. Beyond that, GHA also showed that it was, in fact, Governor Kemp’s intent to motivate healthcare workers to return to work for all patients and to reopen the doors of hospitals and facilities in order to ensure the viability of the healthcare system to respond to the pandemic. GHA also demonstrated that over 90% of all surgeries are classified as “elective,” but that does not mean those surgeries are optional or not lifesaving. Delays from surgeries can have significant negative consequences, including advancement of disease processes, further deterioration, and mental and financial harm. Without the protections granted by Governor Kemp, healthcare workers would have been reluctant, if not remiss, to place their own health and safety at risk to treat their patients, whether COVID-positive or otherwise.

To access the brief, please click here.