Georgia Passes Law to Shield Businesses from COVID-19 Liability

The Georgia legislature recently passed a bill designed to shield healthcare facilities and other business entities from civil liability related to the spread of COVID-19. On August 5, 2020, Governor Brian Kemp signed the “Georgia COVID-19 Pandemic Business Safety Act,” which provides businesses with a general shield against civil tort lawsuits brought by members of the public, customers, or employees who alleged that they contracted or were exposed to the virus while on the premises.

Although the text of the Act is focused on healthcare providers, it applies to any “healthcare facility, healthcare provider, entity, or individual,” which, consequently, encompasses almost any business in Georgia. The Act shields businesses from COVID-19-related lawsuits except in cases where a business acted with “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”

Additionally, businesses that provide a written warning are further protected by a rebuttable presumption that the person bringing the lawsuit assumed the risk of contracting COVID-19 by entering the business. To qualify for this additional protection under the Act, businesses must post the statutorily-prescribed warning either (1) on a sign at the business premises’ point of entry, or (2) on a receipt or as part of a proof of purchase for entry. Notably, these presumptions and written warning requirements are in addition to, and do not limit, the overall legal immunities created under the Act.

It is important to note that while the Act provides a defense against virus-related tort claims, it does not preclude claimants from bringing claims or filing lawsuits against Georgia businesses – meaning businesses will still incur the costs of defending these actions even if the Act ultimately shields them from liability. Further, the Act only protects Georgia businesses for claims arising from exposures to COVID-19 that occur up through July 14, 2021.

As Georgia business owners certainly know, the COVID-19 pandemic has created a complicated environment filled with uncertainty. While the Act provides businesses with a layer of protection for virus-related claims, owners and managers are encouraged to coordinate their reopening plans with legal counsel to ensure that they are optimally protected.

Georgia Supreme Court Expands Potential Unlimited Punitive Damages in Civil Cases Involving an Intoxicated Defendant

In Reid v. Morris, Case No. S20A0107 (Ga. S. Ct., June 29, 2020), the Supreme Court of Georgia held that under Georgia’ s punitive damages statute, a defendant may be subject to unlimited punitive damages if he commits a tort while intoxicated—even if the tort does not involve driving under the influence. In this case, the two defendants, Stroud and Morris, were drinking together, and though Stroud knew Morris was drunk, had no license, and was known to be reckless, he gave Morris his car keys and let him drive. The plaintiff was injured when his vehicle was struck by the vehicle driven by Morris.

The plaintiff sued both Morris and Stroud. He alleged that Stroud negligently entrusted the vehicle to Morris, and he sought punitive damages against both defendants. The trial court ruled that under O.C.G.A. § 51-12-5.1(f), only an “active tortfeasor” could be liable for punitive damages, which would only be the impaired driver. The Georgia Supreme Court vacated this part of the trial court’s judgment and remanded the case to determine whether Stroud was an “active tortfeasor” and thereby subject to punitive damages.

Construing O.C.G.A. § 51-12-5.1(f), the Court held that an “’active tort-feasor,’ as used in the statute, is not necessarily limited to drunk drivers.” Instead, the statute imposes unlimited punitive damages when “the defendant was intoxicated to the degree that his judgment was substantially impaired” and his “positive acts of negligence” were the proximate cause of the plaintiff’s injury.

Now, after Reid v. Morris, Defendants and liability insurers must consider the potential for unlimited punitive damages in all cases in which alcohol or drugs are involved, not just those involving DUI drivers. For example, if a homeowner has a few too many drinks before deciding to pressure wash the sidewalk in front of his house on a sub-freezing day, a resulting slip and fall accident with minor injuries could subject the homeowner to unlimited punitive damages under O.C.G.A. § 51-12-5.1(f). Thus, defendants and their counsel should anticipate that plaintiffs’ attorneys will now seek to develop evidence of possible intoxication in most every case.

Georgia Supreme Court Recognizes Alternative Licensing Certification for Lactation Care Providers

In a recent decision, the Georgia Supreme Court held that the State Constitution protects Georgians’ right to pursue an occupation of their choosing free from unreasonable government interference. The case directly concerned the rights of lactation care providers (LCs) to practice with alternative licensing credentials, though it could potentially have a far-reaching impact on other professionally licensed occupations in Georgia.

In Jackson, et al. v. Raffensperger, Plaintiffs Mary Jackson and her non-profit lactation consulting organization, Reaching Our Sisters Everywhere, Inc. (“ROSE”) filed a lawsuit against the Secretary of State challenging the constitutionality of the Georgia Lactation Consultant Practice Act (the “Act”), which prohibits the practice of “lactation care and services” for compensation without a license from the Secretary of State. Plaintiffs alleged that under the Act, they were not eligible for a license because they lacked a privately issued credential that the Act requires for licensure, even though they had other private credentials that made them equally competent to provide lactation care and services to the public. Plaintiffs argued that the Act violated their constitutional rights.

On Appeal, the Georgia Supreme Court recognized that LCs – like other practitioners in the healthcare field – can obtain certification from multiple private accrediting entities. Here, the Court found that the two most prominent certifications are Certified Lactation Counselor (“CLC”), which Jackson and many members of ROSE had, and International Board-Certified Lactation Consultant (“IBCLC”). While there were significant differences in the credentialing requirements between CLC and IBCLC, the Court recognized that CLCs and IBCLCs are equally competent to provide lactation care and services to mothers and babies and there was no evidence that CLCs or other unlicensed LCs have ever harmed public health, safety, or welfare. Nonetheless, the Act only permitted IBCLCs to be licensed by the State. The Court noted that discrepancy and found it to be an unreasonable government interference on LCs to pursue their occupation.

Continuing its analysis, the Court found held that the Georgia Constitution affirmatively protects an individual’s right to pursue the lawful occupation of her choosing free from unreasonable government interference.

While this case exclusively concerned lactation care providers, Georgia’s licensed healthcare and other professionals should be aware that the Court’s holding could potentially be used to challenge the State’s licensing protocols in other professions. Provided that practitioners can show that the alternative licensing entity is as meritorious and safe as State-approved licensing entity, those practitioners may also have a path to valid licensure by the State.

Georgia’s Professional Licensing Boards Approve Temporary Practice Permits for Healthcare Providers in Response to COVID-19 Pandemic

In response to the public health emergency posed by the novel coronavirus, several of Georgia’s licensing boards have been authorized to issue “emergency practice permits” allowing healthcare professionals to practice in Georgia for a limited amount of time. Interested healthcare professionals are encouraged to review the following information and to contact their respective licensing boards as indicated below. Our team of lawyers at Levy Pruett Cullen is working remotely and monitoring the rapidly evolving pandemic.  Please check our website for updates and call with any questions: 404-371-8857.

Georgia Composite Medical Board 

Following the Governor’s March 14th declaration of a public health emergency, the Georgia Composite Medical Board may approve and issue “emergency practice permits” to physicians, physician assistants, advanced practice registered nurses, and respiratory care professionals who wish to practice medicine in Georgia during the current COVID-19crisis.

Before practicing medicine in Georgia pursuant to an emergency practice permit, the applicant must receive the Board’s approval of the following:

• An application for an emergency practice permit (see link below).

• Proof of current and unrestricted licensure in another state.

• Copy of a valid government-issued photo ID, and

• A current National Practitioner’s Data Bank Report.

All permits issued under this provision shall be valid for 90 days or until the state of emergency has been lifted by Georgia’s governor, whichever comes first.

Information for submitting an application, as well as the permit application itself, is available at https://medicalboard.georgia.gov/press-releases/2020-03-16/gcmb-emergency-practice-permittemp-license-response-covid-19.

Georgia Board of Nursing

Following the Governor’s March 14th declaration of a public health emergency, the Georgia Board of Nursing is authorized to issue temporary permits to licensed practical nurses, registered nurses, and advanced practice registered nurses who have an active, unencumbered license in any other U.S. jurisdiction who are coming to Georgia to respond to the COVID-19 pandemic. 

Temporary permits issued by the Georgia Board of Nursing are valid for 30 days, though the Board is authorized to extend the expiration date. This policy is effective while a State of Emergency, as declared by the Governor, exists in any Georgia county or until rescinded by the Board, whichever occurs first. Application fees for the temporary permit are waived for those applying to practice in response to the COVID-19 emergency.

Additional information and the permit application are available at https://sos.ga.gov/index.php/licensing/plb/45/emergency_temporary_permits.

Finally, Georgia is a member of the Nurse Licensure Compact, which allows licensed practical nurses and registered nurses with a multi-state license from another Compact jurisdiction to practice in Georgia.  

Georgia Board of Pharmacy

Following the Governor’s March 14th declaration of a public health emergency, the Georgia Board of Pharmacy is authorized to issue temporary licenses to dispense prescription drugs for pharmacists who are not licensed in Georgia but are currently licensed in another state. A temporary license may be issued if (1) the Board can verify the applicant’s current licensure is in good standing with the state or indirectly via a third-party verification system and (2) the applicant is engaged in a documented COVID-19 relief effort. 

The Board is also authorized to issue temporary licenses for pharmacy technicians and pharmacy interns to assist pharmacists in dispensing prescription drugs in response to the COVID-19 emergency. Pharmacy technicians and pharmacy interns applying must also be currently registered or licensed in good standing in another state.

The temporary recognition of non-resident pharmacist licensure and pharmacy intern licensure shall remain valid until the end of the month following the third board meeting conducted after the license is issued and shall not be renewed. The temporary recognition of non-resident pharmacy technician registration shall cease when the state of emergency is lifted. 

Additional information from the Georgia Board of Pharmacy and permit applications are available at https://gbp.georgia.gov/press-releases/2020-03-17/covid-19-coronavirus-response-georgia-board-pharmacy.