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.
Trial Attorney Blog
As mentioned in Part I, punitive damages are not available as part of the wrongful death claim. They are, however, available in connection with the estate’s claims for the decedent’s predeath injuries and pain and suffering. Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 701 (1985).
This is Part I of a discussion concerning what damages are available in Georgia wrongful death cases. Part II will be published next week.