Switch to ADA Accessible Theme
Close Menu
Atlanta Criminal Defense Lawyers > Blog > Medical Malpractice > How the COVID-19 Pandemic Affects Georgia Medical Malpractice Claims

How the COVID-19 Pandemic Affects Georgia Medical Malpractice Claims


The COVID-19 pandemic had a widespread and devastating impact on Georgia’s healthcare system. At the beginning of the pandemic, in April 2020, Georgia Governor Brian Kemp issued an executive order formally declaring a “public health state of emergency.” Among other provisions, the executive order declared that “employees, staff, and contractors of healthcare institutions and medical facilities shall be considered auxiliary emergency management workers pursuant to OCGA Section 38-3-35.”

Section 38-3-35 is a Georgia statute that provides legal immunity to certain groups, including auxiliary emergency medical workers, from any personal injury claims arising from the provision of any “emergency management activity” and who makes a reasonable attempt to comply with any emergency orders. Essentially, the governor’s order was intended to prevent medical malpractice lawsuits against front-line medical personnel providing care during the pandemic, except for cases of “willful misconduct, gross negligence, or bad faith.”

Orthopedic Surgeon Cannot Rely on Executive Order to Avoid Malpractice Lawsuit

But how far does this COVID-19 immunity extend? Can a healthcare provider claim immunity from a medical malpractice lawsuit for care that was not directly related to the pandemic? The Georgia Court of Appeals recently addressed these questions and determined the executive order was not that broad in its scope.

The case before the Court of Appeals, Resurgens, LLC, v. Ervin, involved a plaintiff admitted to an Atlanta-area hospital in May 2020–a couple of weeks after the governor issued his executive order–to undergo an elective surgical procedure on his back. The plaintiff had been dealing with severe back pain for several months, and prior to the pandemic she agreed to the procedure recommended by her orthopedic surgeon.

While in post-surgical recovery, the plaintiff reported weakness and paralysis in her left leg. Even after her discharge from the hospital several days later, she continued to suffer from weakness in her left leg and difficulty walking. She later suffered a catastrophic stroke and is now receiving round-the-clock care.

The plaintiff subsequently filed a medical malpractice lawsuit against the orthopedic surgeon and her employer. In response, the defendants moved to dismiss the case, claiming immunity from lawsuit under the governor’s COVID-19 executive order. The surgeon argued that he was a covered “auxiliary emergency management worker” when he performed the surgery, and that the procedure itself was an “emergency management activity.”

The trial court rejected the defense’s argument. The judge noted that the General Assembly passed legislation restricting the application of the executive order to provide legal immunity only in connection with COVID-19 liability claims, not all medical malpractice claims generally. The Court of Appeals agreed and affirmed the trial judge’s ruling. The appellate court said the plaintiff’s medical malpractice complaint alleged negligence in the performance of elective surgery that was “apparently unrelated in any way to the COVID-19 public health emergency.” So the defendants could not rely on COVID-19 immunity to avoid a trial.

Contact Hawkins Spizman Trial Lawyers Today

If you have been harmed by the negligent act or omission of a Georgia health care provider, it is imperative that you speak with an experienced Fulton County personal injury lawyer who can advise you of your rights and assist you in seeking compensation. Contact Hawkins Spizman Trial Lawyers today to schedule a free consultation. We serve clients throughout Georgia including Atlanta, Dunwoody, Alpharetta, Cobb County, Fulton County, Gwinnett County, Johns Creek and Sandy Springs.



Facebook Twitter LinkedIn