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Archive for the ‘Coronavirus – Tort and Catastrophic Loss’ Category

Statute of Limitations Tolled in California Amid Pandemic

Posted on: August 3rd, 2020

By: Matthew Jones

In response to the COVID-19 pandemic, California’s Governor Gavin Newsom issued a “state of emergency” for the entire State. In response, the California Judicial Council adopted several Emergency Rules to implement during the pandemic. In particular, Rule 9 states that all statute of limitations for civil causes of action are tolled from April 6, 2020 until 90 days after the state of emergency related to COVID-19 is lifted by the Governor. Therefore, if a party’s claim would have expired pursuant to the applicable statute of limitations during this timeframe, such claims are still very much alive. In regard to those claims, there is currently no deadline to file them since the “state of emergency” has yet to be lifted by the Governor. Once lifted, claimants will have six months to file their respective claims.

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Immunity for COVID-19 Claims in Georgia

Posted on: June 16th, 2020

By: Jake Daly

Following a three-month layoff due to COVID-19, the Georgia General Assembly reconvened on June 15 to complete its business for the 2020 session. With only ten legislative days remaining as of June 15, 2020, there is limited time to deal with new and old priorities. One of the new priorities is a bill providing immunity for businesses and healthcare providers that are sued by employees, customers, visitors, and patients who contract COVID-19.

HB 216 was introduced in the House in 2019 to create a specialty license plate honoring the Georgia Tennis Foundation. The House passed it on March 10, 2020, and it was referred to the Senate Committee on Public Safety where it was amended to become the Georgia Pandemic Business Immunity Act. This committee passed the amended version of HB 216 on June 15, 2020. The bill still needs approval by the full Senate and the House before it can be signed into law by Governor Brian Kemp.

HB 216 is designed to (1) ensure that society’s constitutional freedoms are adequately protected while allowing citizens and businesses to return to some sense of normality without fear of civil liability that may arise from risks that nobody can fully control, (2) allow the citizens of Georgia to focus on rebuilding the state’s damaged economy without being burdened by the costs of crippling litigation, (3) allow businesses to continue to obtain access to affordable insurance coverage for their operations, and (4) allow the state and local governments to raise the revenue needed to provide critical services to their citizens.

If enacted, HB 216 would create a new code section, O.C.G.A. § 51-1-56, which would apply only to claims that arise after its effective date and on or before June 30, 2022. (The end date is two years after Governor Kemp’s last executive order declaring a state of emergency due to COVID-19 expires. Governor Kemp’s current executive order expires on June 30, 2020.) The key provisions of HB 216 are:

  • All persons would be immune from any civil liability for damages arising from exposure to or contraction of COVID-19 by another while on their premises. Note that the term “person” is defined broadly to include natural people, businesses, property owners’ associations, charitable organizations, and state and local governments and their departments and officials. Also, the term “premises” is defined broadly to include residential, commercial, agricultural, and industrial property that is owned, occupied, leased, operated, maintained, or managed by a “person.”
  • All healthcare providers and facilities would be immune from any civil liability for injury or death allegedly caused by the provider’s or the facility’s good-faith acts or omissions while providing healthcare services related to COVID-19.
  • There would be no immunity for conduct that constitutes gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
  • Punitive damages could not be recovered in any case involving exposure to or contraction of COVID-19.

Stay tuned for further updates as HB 216 winds its way through the General Assembly.

If you have questions or would like more information, please contact Jake Daly at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you. We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Potential New Reporting Requirements for Long-Term Care Facilities in the Commonwealth in Response to COVID-19

Posted on: May 14th, 2020

By: Janet Barringer, William Gildea and Kevin Kenneally

In the wake of alarming reports from other states that nursing homes were forced to accept known COVID-19 positive residents, a policy which may have caused the spike in healthy nursing home residents becoming infected, Massachusetts has proposed sweeping legislation to protect senior citizens and to require daily reporting from Long-Term Care residences to ensure patient and resident safety. The Commonwealth of Massachusetts State Legislature has proposed legislation that will impact reporting requirements for long-term care facilities, including assisted-living facilities and state correctional facilities in response to the COVID-19 pandemic.

If enacted, Massachusetts Senate Bill S.2695 would significantly impact day-to-day operations at long-term care facilities.  Facilities will have to consider how to change their respective operations to meet reporting requirements.  

The proposed legislation will demand close monitoring of COVID-19 cases of residents and employees in Long-Term care facilities and increase reporting requirements.  Massachusetts Senate Bill S.2695 proposes the Department of Public Health collect daily data sets from local Boards of Health, including but not limited to:

  • the total number of people tested for COVID-19 within the previous 24 hours;
  • the total number of people who have tested positive for COVID-19 within the previous 24 hours;
  • the total number of people who have died due to a probable or confirmed case of COVID-19 or from complications related to COVID-19, as reported in the previous 24 hours through the department’s receipt of vital records;
  • the aggregate number of people who have died due to a probable or confirmed case of COVID-19 or from complications related to COVID-19 since the governor’s March 10, 2020 declaration of a case of COVID-19, including, but not limited to:
    • gender;
    • race;
    • ethnicity;
    • primary city or town of residence;
    • age;
    • disability.

The proposed legislation calls for the Department of Public Health to publish daily reports of the data collected.  The daily reports would be compiled by geographic location, including by county and municipality, and assisted living residences licensed by the executive office of elder affairs and long-term care facilities licensed by the department of public health, including the number of COVID-19 positive cases andmortalities among residents, as well as the aggregate number of COVID-19 positive cases and mortalities among staff at each residence or facility. 

Assisted-living facilities licensed by the Executive Office of Elder Affairs and long-term care facilities licensed by the Department of Public Health will be required to notify residents and their representatives within twelve (12) hours if there is a confirmed case of or death due to COVID-19 in a resident or staff member and/or if three (3) or more residents/staff have a new onset of respiratory symptoms within the previous seventy-two (72) hours.  The proposed legislation also calls for a task force to study and make policy recommendations that address health disparities for underserved or underrepresented populations during the COVID-19 pandemic.  The proposed legislation would no longer be in effect after the governor certifies there has been no positive COVID-19 test in the Commonwealth.

If you have any questions or would like more information, please contact Kevin Kenneally at [email protected], Janet Barringer at [email protected] or William Gildea at [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include tort claims in a post COVID-19 world, real estate issues amid the pandemic and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Massachusetts: Relief Funds For Nursing Home & Other Long-term Care Facilities Fighting COVID-19

Posted on: April 27th, 2020

By: Janet Barringer and William Gildea

Massachusetts Governor Charlie Baker announced on April 27, 2020 the Commonwealth will allocate $130 Million to nursing homes and other long-term care facilities in Massachusetts to assist in the ongoing battle against COVID-19. The COVID-19 Nursing Facility and Accountability Support document states “[n]ursing facilities account for more than half of COVID-19 related deaths in the state.” The rapid rate of infection and mortality is driven by the “health status of residents, lack of infection control sophistication and for crisis management, substantial staffing issues (up to 20-40% of call out rates), and difficulty cohorting residents to decrease transmission.”

Nursing homes and other long-term care facilities should take note of this new assistance offered by the Commonwealth to help the battle against COVID-19. The Press Release provides the following:

  • Funding will support staffing costs, infection control and personal protective equipment (PPE);
  • Funding is dependent on required COVID-19 testing of all staff and residents, regular infection control audits, appropriate allocation of funding and the public release of facility performance and funding use;
    • Facilities must test all staff and residents, and report results to the Commonwealth. Facilities are also encouraged to identify and pursue testing avenues with area hospitals, EMS or other providers. The state’s mobile testing program is available for those facilities unable to set up testing.
    • All nursing facilities will be regularly audited in-person for infection control and accountability, and each will receive a baseline audit during the first two weeks of May. These clinical audits will be conducted using a 28-point Infection Control Checklist, based on DPH, CDC and industry guidance. This checklist includes infection control, PPE supply and usage, staffing, clinical care, and communication requirements.
    • Frequency of audits is dependent upon a variety of factors including: Audit Rating, historically documented infection control issues, staffing levels based on industry standard hours per patient day of care and call-out rates, level of COVID-19 infection, and quality rating by the Nursing Facility Taskforce.
  • Facilities will be scored into three ratings: in adherence (green), in adherence but warrants inspection (yellow) and not in adherence (red).
  • The Commonwealth will offer support for temporary staffing assistance for all nursing homes in need, including clinical response teams of 120 nurses and Certified Nursing Assistants deployed in teams of 10 during emergency situations, crisis management support and deployment of the Massachusetts National Guard;
  • All performance measures and funding use will be publicly reported using a mandatory reporting template, and the Commonwealth will provide consolidated information in the testing completion status by facility, COVID-19 case counts and mortality of staff and residents, and audit results. These reports will be due shortly after June 30th, and the Commonwealth will then compile and deliver a public report.
  • Funding is directly linked to an audit rating over time and, if qualified, will be dispersed biweekly over four “pay periods.”

Governor Baker promised to be “aggressive” in assisting long term care facilities impacted by COVID 19. The $130 Million in relief funds and associated steps for protection are examples of the care extended by Massachusetts to those who live and work in nursing homes and other long-term care facilities.

If you have any questions or would like more information, please contact Janet Barringer at [email protected] and William Gildea at [email protected].

Georgia’s first taste of COVID-19 lawsuits in long term care facilities

Posted on: April 27th, 2020

By: Shaun Daugherty

It has been highly publicized that long-term care facilities were devastated by the effects of COVID-19 on its residents and the filing of negligence suits against long-term care facilities in its wake was inevitable. Four such cases were filed in Fulton State Court on April 23, 2020. All of the cases involve the same facility, the same plaintiffs’ firm, and similar fact patterns and allegations. 

Each complaint alleges that the facility negligently failed to follow precautionary restrictions that were put in place at the facility starting on March 11, 2020. Coincidentally, that is the same date that the WHO declared a global pandemic and two days before President Trump declared a national emergency. In fact, if the allegations in the complaints are accurate, then these restrictions were implemented by the facility ten days before the CDC issued guidance to nursing homes and long-term care facilities. 

However, the claims appear to be centered on whether the restrictions were followed rather than their timely implementation. Plaintiffs claim that despite the imposition of the restrictions, employees failed to wear personal protective equipment and asymptomatic staff that were exposed to COVID-19 were permitted to continue to work. In each of these four cases, it is alleged that the residents tested positive for COVID-19 and died as a result. 

These appear to be the first cases in Georgia of their kind. However, earlier this month, a negligence and fraud case was filed in Washington state related to the well-publicized issues that occurred at the Life Care Center at Kirkland and the subsequent death of one of the residents. These Georgia cases will likely be the first to test Governor Kemp’s Executive Order that extended civil liability immunity. There are also a host of additional defenses that will likely be asserted related to timeliness, reasonableness, and, significantly, proximate cause. There is a recognized difference in dying with a diagnosis of COVID-19 and dying because of the disease.  Residents in these facilities were likely already suffering from a number of co-morbidities that placed them in the high-risk category to begin with.  Expert testimony in the many fields of medicine will likely become involved on both sides. 

There are also a host of additional defenses that will likely be asserted related to timeliness, reasonableness, and, significantly, proximate cause. There is a recognized difference in dying with a diagnosis of COVID-19 and dying because of the disease.  Residents in these facilities were likely already suffering from a number of co-morbidities that placed them in the high-risk category to begin with.  Expert testimony in the many fields of medicine will likely become involved on both sides. 

These cases will be watched closely by the legal community and will likely be the measuring sticks on causes of action and defenses for the expected onslaught of new claims that are on the way. 

If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].