The Georgia Court of Appeals has held that “immunity” from routine medical malpractice lawsuits during the COVID-19 pandemic does not apply to a claim arising out of elective back surgery. Plaintiff sought medical care from an orthopedic surgeon related to back pain. On February 28, 2020, Plaintiff agreed to elective surgery during an office visit. The pandemic started and Governor Kemp issued two emergency orders declaring that healthcare workers are essential emergency workers and providing legal liability immunity unless there was proof of gross negligence.

Plaintiff had the surgery in May 2020 and suffered a complication, eventually leading to a stroke and permanent disability. Plaintiffs sued the surgeon for professional negligence and amended the complaint to add claims for willfulness, gross negligence, and bad faith. Defendants asserted COVID-19 immunity under the executive orders and later statutory codification. Defendants moved to dismiss based on the immunity defense and moved to compel arbitration. The trial court denied both and the Court of Appeals affirmed.

The COVID-19 executive orders and later statutory codification provided immunity to healthcare workers as “auxiliary emergency management workers” and that services provided by them “shall be considered emergency management activities.”  The statute further denominated such services as “emergency management activity.” Defendants argued that the spinal surgery was an emergency management activity because it was performed during the height of the pandemic. The Court of Appeals disagreed, holding that, in light of the entire executive order and statutory scheme and intent, the limited immunity provisions apply to emergency services only. Because Defendants were providing elective, non-emergent services that were unrelated to COVID-19, they were not entitled to immunity.

Take-home: although broadly worded in some respects, the COVID-19 emergency orders and statutory protections are limited to claims related to COVID-19. It remains to be seen where the line is drawn in terms of treatment of COVID-19 the immunity goes, but the outer limits have been defined.

The case is Resurgens, LLC v. Ervin, __ S.E.2d __, 2023 WL 7011731 (Oct. 25, 2023).