05 May Georgia Applicable State Immunity For COVID-19 Cases
Written by: Stephanie R. Amiotte, Esq.
COVID-19 is a pandemic nobody was prepared for and nobody wanted to happen. Its effects on the incarcerated population, particularly those with fragile health or advanced age will likely result in increased litigation against correctional healthcare providers. Hall Booth Smith, P.C. is dedicated to meeting the pandemic head-on in defending correctional healthcare providers on the forefront. Much like the general public, correctional healthcare providers and legal advisors have to adapt to the increasing demands on all resources. This article will assist correctional healthcare medical providers in presenting the best defense to combat the anticipated claims of COVID-19 related lawsuits by exploring immunity and other defenses available in the state of Georgia.
The effects of COVID-19 are staggering. The Centers for Disease Control reports that in the United States as of April 29, 2020, there have been 1,005,147 COVID-19 diagnoses; with 57,505 COVID-19 related deaths. In Georgia alone, there have been 25,868 confirmed cases of COVID-19 resulting in 1,159 intensive care unit admissions, 5,090 hospitalizations and 1,100 deaths as of April 29, 2020. The American Medical Association and the Association of American Medical Colleges report that shortages abound for nurses, doctors, tests and supplies, creating additional stress on the United States healthcare system. All create a breeding ground for lawsuits in the correctional healthcare setting.
In a rush to protect the nation’s medical providers and encourage prompt response to the pandemic, emergency declarations and orders through Governors and legislation have been enacted granting certain immunities and relaxing previously stringent regulations. The real world impact is that non-emergent, elective or otherwise non-critical procedures have come to a screeching halt. The anticipated legal outcome is likely not only going to be increased correctional healthcare cases filed directly related to contraction of COVID-19, or its treatment or diagnosis in addition to the secondary or tertiary level of litigation related to delayed treatment or refusal of treatment for non-life threatening elective procedures or other negligence claims remotely caused or affected by COVID-19. Even those cases filed by jail and prison inmates that appear at first blush to be non COVID-19 related may fall under the wide umbrella of the newly enacted immunity legislation and should be analyzed thoroughly.
The medical profession as a whole has swiftly responded with guidance and calls for action asking for immunity, increased funding for supplies and closing loop-holes missed in first round of immunity legislation and emergency declarations. However, there are still more questions than answers which, like all new law, will create a ripe platform for increased litigation, including in the correctional healthcare setting. Because this is an unprecedented medical pandemic in modern society, there is significant need for broad based immunity and corresponding dismissal of COVID-19 related cases in correctional healthcare. While the assertion of governor conferred immunities to private medical actors as a substantive defense to claims filed under 42 U.S.C. § 1983 is likely going to be hotly contested, there is some basis to assert it. The United States Supreme Court has analyzed and permitted private party immunity previously based on state law, even if it was later determined to be unconstitutional, because of the important public interest in permitting ordinary citizens to rely on presumptively valid state laws, thus shielding such citizens from monetary damages and protecting them from liability where their role in any unconstitutional action was marginal. As such, correctional healthcare providers who provide services during the time the available COVID-19 immunity laws are enacted, have a good faith argument to assert immunity, even in federal lawsuits filed under a federal 1983 cause of action. Furthermore, additional new defenses based on COVID-19 public health priority standards of care are also ripe for argument on direct and indirect levels by correctional healthcare professionals.
This article addresses the law and rational for dismissal of applicable COVID -19 cases unique to correctional medical providers based upon the recent enactment of emergency laws and immunities in the state of Georgia. It also includes an analysis of the roadblocks to invoking state immunities, other defenses to be raised and bases for dismissal based on immunity in the correctional healthcare litigation.
1. The law and rationale for dismissal of applicable COVID-19 cases.
Sound the trumpets for a new defense in town! While the circumstances are not ideal and certainly not desired for the defense bar getting a new basis for medical immunity, ensuring that the defenses are adequately pled and asserted is paramount to obtaining successful dismissal. Immunity, unlike traditional defenses that require significant litigation before the goal of dismissal is achieved, immunity legislation allows the attorney to seek a swift and early dismissal through an immediate Motion to Dismiss.
There are multiple grounds upon which dismissal of COVID-19 related cases can be made in Georgia depending on whether filed in federal, state or superior court. For correctional healthcare lawsuits filed in in Georgia, immunity can be argued on the basis of Governor Kemp’s Emergency Declaration issued on March 14, 2020 which provides broad based immunity for medical providers. The second is on the basis of the federal PREP Act declaration issued by the Secretary of Health and Human Services, Alex Azar, which explicitly states that it applies to all federal and state law claims and provides immunities for losses sounding in contract or tort. Third, immunity can be argued under Governor Kemp’s second Emergency Declaration issued on April 14, 2020 which grants immunity for performing emergency management activities, except in cases of willful misconduct, gross negligence, or bad faith. Fourth, the CARES Act provides immunity for healthcare providers who are volunteering to provide services during COVID-19 if negligent acts are not willful, grossly negligent, or committed under the influence of intoxicating drugs or alcohol. All should be asserted when applicable and a thorough analysis of the facts should be made to determine each defenses’ application in the correctional healthcare suit filed.
A. Immunity Defense Based on Governor’s Emergency Declarations.
On March 14, 2020, Georgia’s Governor Kemp declared a statewide public health emergency. Emergency Declaration 3.14.2020.01 mandates that all hospitals, healthcare facilities, clinics, and medical personnel “shall fully comply with Governor’s orders.” The Emergency Declaration is broad and specifically authorizes and suspends certain regulations affecting medical malpractice claims. These include authorizing temporary licensing of physicians and nurses who are in good standing by equivalent boards; directing the Georgia Composite Medical Board immediately adopt emergency rules to provide telemedicine licenses; suspending enforcement of medical license inactivity or lapses if same occurred during five (5) years prior to the declaration; and authorizing graduate registered nurses and practical nurses to obtain temporary licenses who have yet to sit for an exam.
Frequently, Complaints will allege improper training, inadequate staffing policy, or other inadequate credentialing of correctional healthcare workers. Executive Order 3.14.2020.01 allows for the defense of immunity to all of these allegations now. Because of the immunity granted broadly and the suspension of these requirements, it cannot be argued that the correctional healthcare provider was not adequately trained or licensed because the measure of the standard of care required has been temporarily lowered or modified.
B. Immunity Defense Based on Executive Order 04.20.01
To ensure all hands are on deck in the medical field, Governor Kemp issued a second Executive Order on April 14, 2020 which broadened protections and further extended immunity to the medical field. This order deems all employees, staff, or contractors of “healthcare institutions” and “medical facilities” (as defined and regulated under O.C.G.A. § 31-7-1 et. seq.) as “auxiliary emergency management workers” for the Georgia government, pursuant to Georgia Code Section 38-3-35. It is important to note that under current law in Georgia, emergency management workers are already immune from liability arising from actions related to performing emergency management activities, except in cases of willful misconduct, gross negligence, or bad faith. Now, however, Governor Kemp’s order comprehensively expands the emergency management worker definition to all medical providers in Georgia during COVID-19 and it also expands the definition to include all medical care provided by healthcare institutions and medical facilities and not just emergency rooms with limited exception. Unfortunately, private practice physicians may not be covered under the existing definition of “healthcare institutions” and “medical facilities.” These broadened immunities to medical providers will continue until the Governor declares the end of the COVID -19 state of emergency in Georgia.
This broad-based order should be construed liberally and broadly to assert all defenses for immunity when responding to litigation. To the extent that a correctional healthcare provider is delaying services or canceling services due to COVID-19 he or she should argue that they are, by following the Centers for Diseases Control (CDC) Guidelines to cancel or delay non-emergent procedures indirectly supporting other “emergency management services.” The CDC recommends that ALL healthcare providers should preserve supplies during this pandemic and does not differentiate between private physicians, correctional healthcare providers, or larger hospital facilities. The CDC specifically advises:
Healthcare facilities and clinicians should prioritize urgent and emergency visits and procedures now. These actions can preserve staff personal protective equipment (PPE) and patient care supplies; ensure staff and patient safety; and expand available hospital capacity:
Delay all elective ambulatory provider visits
Reschedule elective and non-urgent admissions
Delay inpatient and outpatient elective surgical and procedural cases
Postpone routine dental and eyecare visit
Furthermore, the CDC recommendations for correctional healthcare facilities sets forth similar guidelines. Because of the public health risk posed as a whole and the direction from the CDC, any resulting lawsuits arising from delayed or canceled appointments in the correctional setting should arguably fall within the broad auspices of the Executive Order’s immunity provisions. The need for delayed procedures is arguably heightened in correctional facilities where the close quarters with patients from many areas geographically which make the spread of COVID-19 heightened.
C. Immunity Defense Based on the PREP Act.
The federal PREP Act applies to all state and federal claims as well expressly and should be advanced as a defense if allegations are raised regarding administration of medications or use of medical devices to treat COVID-19 whether filed in federal, state or superior court. On March 10, 2020, the Secretary of Health and Human Services, Alex Azar, issued a PREP Act declaration as authorized by The Public Readiness Emergency Preparedness Act Public Readiness and Emergency Preparedness Act. The PREP Act authorizes the Secretary of Health and Human Services (HHS) to declare that certain “covered persons” are immune from liability for lawsuits arising from a tort or contract claim arising from medications and devices used to treat COVID-19. The covered persons include manufacturers, distributors, program planners, and qualified persons, their official agents, and employees who prescribe or use covered countermeasures. “Covered countermeasures” are Food, Drug and Cosmetic (FD&C) approved qualified pandemic or epidemic products, security countermeasures, drugs, biological products or devices authorized for emergency use.  In general, the PREP Act provides targeted liability protections for pandemic and epidemic products and security countermeasures.  It also provides liability immunity for medical providers who are providing COVID-19 related treatments including their administrators with demonstrated causal relationship and extends to claims of death, personal injury, emotional injury, property damage, business interruption and fear of personal injury without regard to the date of the occurrence, presentation or discovery of the loss. Willful misconduct is not covered. The federal PREP Act, because it applies to both federal lawsuits and state lawsuits should not be discounted as a valid defense to be raised and argued in any correctional healthcare lawsuit in which COVID-19 is a factor either on an immediate level or even a more remote level when it involves the use of COVID-19 treatment medications, diagnostic tests, or devices. Most of the expected correctional healthcare litigation anticipated probably will address whether an approved “countermeasure” was used or whether the healthcare provider was a “covered person” but when appropriately argued, the PREP Act can serve as an immunity defense related to treatment, medication and product-based negligence claims.
D. Volunteer Immunity Under the CARES ACT
The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) went into effect on March 27, 2020 and is federal legislation passed to provide financial support and resources to individuals and businesses affected by the COVID-19 pandemic. The $2 trillion stimulus bill is the largest stimulus bill in U.S. history and Congress’ third major piece of legislation to address the COVID-19 crisis. As recognized by the American Medical Association, (AMA) the CARES Act also provides much needed immunity for doctors, nurses, and healthcare professionals who volunteer their services to help those in need during the COVID-19 pandemic. It extends immunity related to diagnosis, prevention or treatment of COVID-19 or the assessment or care of a patient related to an actual or suspected case of COVID-19. Limited exceptions apply for such things as gross negligence, criminal misconduct and providing care while intoxicated. These protections preempt state and local laws that are inconsistent with the CARES Act. However, state laws that provide greater liability protections are not preempted.  Correctional healthcare workers who have come out of retirement or taken on volunteer positions to assist the overstressed and overworked correctional facilities will have the full benefit of the CARES Act immunities.
2. Specific roadblocks to invoking state immunity provisions.
The plaintiffs’ bar will attempt to circumscribe the scope of the immunity provided by targeting their efforts on alleged claims of malpractice in the treatment of COVID-19 and non-COVID-19 patients in correctional settings. Although the statutory immunity is not limited to COVID-19 patients, there must be a connection to the COVID-19 crisis for the immunity to be applied to the alleged injury of a non-COVID-19 patient. It is in this gray area where the legal battle will be fought.
We expect to experience a range of claims, such as, failure to diagnose COVID-19; delay or denial of deemed “elective” or “non-essential” care to correctional health patients that is later asserted to be critical in the course of treatment; alleged negligence whereby patients are infected with COVID-19 by “community spread” in a correctional facility; alleged negligent mistreatment of COVID-19 (e.g., overutilization of ventilators in patient protocols); delay or denial of care due to lack of correctional provider capacity (e.g., bed shortages) or access to medical equipment in the correctional facility (ventilators, PPE, etc.) caused by patient overload outside the correctional setting and asserted negligence in “community spread” of COVID-19 in sensitive areas, such as medical correctional facilities ICU’s, or other large correctional institutional treatment environments. While we expect to see arguments that certain medical providers are not considered “covered persons” using approved “countermeasures” the FDA is rapidly approving different countermeasures so the list is ever-evolving and should be checked frequently at the FDA’s website to verify that the treatment, medication or device was or was not approved by utilizing the FDA’s hotline.
3. Defenses to be raised in responsive pleadings.
Every state and federal defense should be pled in an Answer, including the Emergency Order 3.14.2020.01, PREP Act, Emergency Order 4.14.2020.01, and the CARES Act if it is a volunteer situation, all asserting immunity from liability. Keep in mind that you can always remove a defense later or determine it inapplicable; but, when under a tight timeline, the facts learned later may actually support the defense more solidly. Adding in the defense later requires amendment of pleadings specifically and more work.
There are a wide variety of other substantive defenses to be raised as well which should include that standard of care was met. Keep in mind that the standard of care is fluid and during the COVID-19 pandemic, it is justifiably different than it was prior to COVID-19. The American Medical Association (AMA) and American Nurses Association (ANA) have issued guidelines for emergency care during pandemics that re-prioritize and shift standards of care given any medical situation during events like COVID-19. The American Medical Association has stated publicly that:
Principle VIII in the AMA Code professes that ‘[a] physician shall, while caring for a patient, regard responsibility to the patient as paramount.’ Yet during public health emergencies like pandemics, this commitment of fidelity to the individual patient is counterbalanced by the need to protect the welfare of a population of patients recognized in Principle VII, and to be prudent stewards of limited societal resources entrusted to them, Opinion 11.1.2, ‘Physician Stewardship of Health Care Resources’ in the AMA Code.
Likewise, the ANA has recognized the need for this shift in the standard of care during COVID-19 for nurses.
In a pandemic, nurses can find themselves operating in crisis standards of care environments. In such situations, a utilitarian framework usually guides practice decisions and actions with special emphasis on transparency, protection of the public, proportional restriction of individual liberty, and fair stewardship of resources (Code of Ethics for Nurses with Interpretive Statements)…. Public health emergencies require clinicians to change their practice, including in some situations, acting to prioritize the community above the individual in fairly allocating scarce resources.
The standard of care has shifted substantially during the time of COVID-19 and it is a supported and viable defense in the correctional setting given the public health approach now expected of correctional and other healthcare providers.
Another defense that may apply is to assert that a Shelter in Place Order has been issued requiring non-essential industry and services to halt. On April 2, Governor Kemp issued a statewide Shelter in Place Executive Order (04.02.20.01) to help slow the spread of COVID-19. The order applies to all Georgia residents and visitors and was initially to remain in effect until April 30 at 11:59 p.m. but was extended first until May 8, 2020 and now until June 12, 2020 under Executive Order 4.30.20.01. The Shelter in Place Order is a law requiring persons to adhere to it or face criminal sanctions as a misdemeanor law violation which includes non-emergent medical care. Businesses not complying with the Department of Homeland Security’s list of essential infrastructure would face the same. If a correctional provider delayed or cancelled care as a result of the Shelter in Place Order because it was deemed non-emergent, liability should be denied as the correctional healthcare provider was following the CDC guidelines and other applicable Shelter in Place orders. Keep in mind that even though Governor Kemp has issued guidance recently to allow medical providers to schedule appointments, the caveat is to do so within the CDC’s recommendations which are not recommending non-emergent or elective procedures to be scheduled or provided.
Assert that there was no breach of duty in those cases where a plaintiff alleges contracting COVID-19 from a correctional medical provider or facility. A plaintiff would have to prove that he or she contracted COVID-19 due to a healthcare provider’s breach of a duty of care owed to them as opposed to contracting it from other correctional facility inmates. Given the highly contagious nature of COVID-19, it would be difficult especially if the correctional healthcare provider has documented and well-defined mitigation measures in place that follow the CDC recommendations.
4. Bases for dismissal based on the immunity extended.
In cases in which plaintiffs allege that the medication, devices used were inadequate or failed; there was improper treatment or general negligence of the correctional healthcare provider responding directly to a COVID-19 patient one should assert an immediate Motion to Dismiss asserting that the lawsuit fails to state a claim on the basis of state and federal COVID-19 related immunity. The Motion to Dismiss will argue that the state and federal legislation under the PREP Act and Georgia State Emergency Declarations have provided immunity to the healthcare provider for the services and treatment of, medications administered or devices used for COVID-19 that are alleged to be negligent. These immunities may justify a dismissal early on because under no set of facts could the claim be brought given the broad based immunity the federal and state legislation provides.
COVID-19 has created new immunity based defenses for the correctional healthcare industry that is unprecedented and necessary during this pandemic. Exploring all defenses available at the primary, secondary and even more remote level is well worth the time and effort. It can make the difference of years of litigation or expedient resolution of a case if asserted properly. Hall Booth Smith PC is dedicated to asserting every viable COVID-19 immunity and other related defense for the correctional healthcare industry to ensure prompt resolution and dismissal of correctional healthcare claims. For questions or comments, please email the author at firstname.lastname@example.org or call Stephanie Amiotte at (912) 554-0093.
 According to the National Commission on Correctional Healthcare, as of April 27, 2020, data reveals that 13% (51 of 389) of inmates tested for COVID-19 are positive with 104 tests pending; 17% (99 of 580) of correctional officers tested are positive with 74 awaiting results and 18% (21 of 118) of health staff tested positive with 14 results pending. https://www.ncchc.org/study-of-covid-19-in-correctional-facilities
 Dennis v. Sparks, 449 US 24, 66 L Ed 2d 185, 101 S Ct 183 (1980), Harlow v. Fitzgerald, 457 US 800, 73 L Ed 396, 102 S Ct 2727 (1982). (Adopting a “functional,” rather than a “derivative,” approach to determining the availability of immunities).
95 A.L.R. Fed. 82 (Originally published in 1989)
 “Immunity” is defined as, “An exemption from … performing duties which the law generally requires other citizens to perform.” https://thelawdictionary.org/immunity/
 Georgia Governor Kemp Executive Order 3.14.2020.01.
 On March 10, 2020, the Secretary of Health and Human Services, Alex Azar, issued PREP Act declaration as authorized by The Public Readiness Emergency Preparedness Act Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d, 247d-6e (2006). See, Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198 (Mar. 17, 2020).
 Georgia Governor Kemp Executive Order 4.14.2020.01.
 The CARES Act provision related to medical provider immunity reads, in pertinent part, “a health care professional shall not be liable under Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services during the public health emergency with respect to COVID–19 … if— (1) the professional is providing health care services in response to such public health emergency, as a volunteer; and (2) the act or omission occurs—(A) in the course of providing health care services; (B) in the health care professional’s capacity as a volunteer; (C) in the course of providing health care services that— (i) are within the scope of the license, registration, or certification of the volunteer, as defined by the State of licensure, registration, or certification; and (ii) do not exceed the scope of license, registration, or certification of a substantially similar health professional in the State in which such act or omission occurs; and (D) in a good faith belief that the individual being treated is in need of health care services. (b) EXCEPTIONS.—Subsection (a) does not apply if— (1) the harm was caused by an act or omission constituting willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the individual harmed by the health care professional; or (2) the health care professional rendered the health care services under the influence (as determined pursuant to applicable State law) of alcohol or an intoxicating drug.
 Georgia Governor Kemp Executive Order 3.14.2020.01.
 Governor Kemp Executive Order 04.14.20.01.
 O.C.G.A. § 38-3-35.
 Governor Kemp’s recent Order also declares that “services provided or performed by healthcare institutions and medical facilities as defined by Code Sections 31-7-1(4)(A), 31-7-1(4)(C)-(G), and 31-7-1(5) shall be considered emergency management activities pursuant to Code Section 38-3-35.” Governor Kemp’s Executive Order 4.14.2020.01.
 The provisions of Executive Order 04.14.20.01 become effective on April 14, 2020 and expire at the conclusion of the Public Health State of Emergency declared as follows: ACCORDINGLY, as designated auxiliary emergency management workers, covered Georgia healthcare providers who “reasonably attempt to comply” with the Executive Order 04.14.20.01 are immune from civil liability arising from performing emergency management activities during the COVID-19 pandemic. Id.
 Those who are not covered leaves a wide swath for litigation under definitions found in OCGA § 31-7-1 (4), which would seemingly exclude from any immunity almost all private medical practice visits. It reads: (4) “Institution” means:(A) Any building, facility, or place in which are provided two or more beds and other facilities and services that are used for persons received for examination, diagnosis, treatment, surgery, maternity care, nursing care, assisted living care, or personal care for periods continuing for 24 hours or longer and which is classified by the department, as provided for in this chapter, as either a hospital, nursing home, assisted living community, or personal care home; The term “institution” shall exclude all physicians’ and dentists’ private offices and treatment rooms in which such physicians or dentists primarily see, consult with, and treat patients.
 A “Covered Countermeasure” as it relates to this declaration must be a “qualified pandemic or epidemic product”, a “security countermeasure”, or a drug, biological product or device authorized for emergency use. 2 U.S.C. §§ 247d-6d, 247d-6e (2006). Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198 (Mar. 17, 2020).
 The U.S. Food and Drug Administration stood up a new program to expedite the development of potentially safe and effective life-saving treatments called the Coronavirus Treatment Acceleration Program (CTAP).https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-continues-accelerate-development-novel-therapies-covid-19
 H.R. 748; Pub.L. 116–136.
 H.R. 748; Pub.L. 116–136.
https://www.ama-assn.org/delivering-care/ethics/crisis-standards-care-guidance-ama-code-medical-ethics The American Medical Association also indicated that “Opinion 11.1.3, “Allocating Limited Health Care Resources,” along with Opinion 5.3, “Withholding or Withdrawing Life-sustaining Treatment,” provide guidance on making initial triage decisions about limited critical care resources for individual patients and for periodically reassessing those decisions. Id.
 American Nurses Association – “Crisis Standard of Care -COVID-19 Pandemic.”
 Executive Order 04.02.20.01.
 Governor Kemp Executive Order 4.8.20.02 and Executive Order 4.30.20.01.
https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders; Executive Order 4.8.20.02
 O.C.G.A. § 9-11-12(6); Federal Rule Civil Procedure 12(b)(6).
 As a matter of best policy, when faced with a case that raises some defense of immunity, courts should address motions on immunity issues as early as practicable. Department of Public Safety v. Johnson, 343 Ga.App. 22, 806 S.E.2d 195 (2017)