It is human nature to forget pain and suffering and move forward, but from a legal perspective, one needs to teleport back into 2020-2022. The uncertainty, the fear, and the grief at the time were almost unbearable. Healthcare employees were on the front line trying to disseminate massive amounts of new data in real-time (weeding through truth and lies) while caring for all patients (regardless of their illness) during a mass exodus of nursing talent due to the toll that this pandemic had on them physically, mentally, and emotionally.
In March 2020, just as the world was shutting down, a team of leaders across Alabama joined forces to protect these healthcare workers when they were at their most vulnerable. This was a joint effort between the business, healthcare, and legal (Plaintiff and Defense) communities throughout the State. The output from this massive collaborative effort is what became the emergency order that Governor Kay Ivey signed on May 2, 2020. It supported the healthcare community during the height of this horrific Global Pandemic from March 2020 – November 2022. It was put in place to protect those healthcare workers from possibly being punished for doing their best under unknown and brutal circumstances while they were putting themselves and their families at risk every day. Only the cruelest of cruel would penalize and put these same people through a lawsuit years later to relive those apocalyptic conditions.
A Nurse’s Perspective:
Working on the frontline during a pandemic was never on my radar as being possible during my nursing career. When the news of “COVID” began circulating in the US and then in our small towns, I ignorantly thought this would be a two-week kind of deal that we would get over rather quickly as things like this did not happen here. But they did. The first case came. Then the next. Then hundreds. Things such as not getting lab results back because of the backlog and patients who were angry they had no answers to test results and could not return to work became the norm. Loved ones and co-workers were lost forever. The Emergency Room functioned like a war zone. Doctors wore full respirator suits with air filtration. There were no supplies. “COVID Units” were established, as there was nowhere to transfer patients. Nearby states were frequently called, and the answer was always the same – no beds were available. We constantly had to think outside the box to preserve and manage what supplies were available, counting every mask and box of gloves. The fear of what if I get sick? and what if I take something home to my family? was always on our minds. Working 30-40 days straight was not uncommon because of the influx of patients and helping manage the supply chain. Undressing in the parking lot, putting our scrubs and shoes in garbage bags, and sealing them was an everyday occurrence. Calling patients’ families as they took their last breaths never became easy. We never let them die alone. Trying any treatments we could, proning patients, having no access to ventilators, and losing patients who were my age were always tragic. I remember thinking, would I be next? The fear, the uncertainty, the bruises, and the pressure ulcers on my face from wearing a mask all day were crippling. We cried with patients because they were scared. We were scared, too. Our communities rallied around us; we felt support. Community prayers and vigils were held…. until it all stopped and then the blame and conspiracies started unfolding.
Now to the post-COVID world. It is slowly rebounding, but as a nurse of 21+ years, I was a part of the mass exodus of nurses from the bedside. We will never forget the pandemic, how hard everyone worked, and the co-workers we lost to COVID-19. This immunity law is so important in supporting the healthcare workers who worked the frontlines to care for patients and placed their lives at risk for others.
In May 2020, right after the beginning of COVID-19 in Alabama, the Governor issued through the Alabama Emergency Management Act (AEMA), a proclamation providing broad immunity for negligence claims against healthcare providers associated with or related to the COVID-19 epidemic. In early 2021, the Legislature adopted the Alabama COVID-19 Immunity Act (ACIA), which closely tracked the Governor’s Proclamation. That legislation was also made retroactive to the entry of the Governor’s May Proclamation. As stated above, both the Governor’s Proclamation and the ACIA provide broad immunity for any negligence claims associated with or related to the COVID-19 epidemic. Claims of wantonness or intentional misconduct are not, however, subject to immunity protection.
Once the world shifted back into normalcy, the courtroom began tackling legal issues from 2020, which includes the ACIA. There have been at least two cases that have been appealed to the Supreme Court challenging this Act.
The first case challenged the scope of the Act. In January of 2024, the Court ruled that ACIA provides an affirmative defense to a hospital being sued for negligence by a patient. In that case, the plaintiff went to the hospital to get a monoclonal infusion and, when leaving, tripped and fell at the exit designated for COVID-19 testing/treatment. The trial court granted the plaintiff’s motion to strike the defendant’s affirmative defense of the COVID-19 immunity statute. The defendant filed for mandamus based on the ACIA. The Alabama Supreme Court reversed and instructed that the hospital defendant was entitled to immunity on the negligence claims because the statute defines “health emergency” claims as “any claim that arises from or is related to the Coronavirus.” The Court recognized “the sweeping breadth of the language in the ACT”. (Ex parte Triad of Alabama, LLC, d/b/a Flowers Hospital SC-2023-0395).
The second case challenged the constitutionality of the Act. On October 4, 2024, The Supreme Court of Alabama held that Jackson Hospital was entitled to the immunity afforded by the Proclamation and the ACIA. The case stemmed from the death of a COVID-19 patient who was admitted to Jackson Hospital two weeks before his December 2020 death. This date happened to be after the issuance of Governor Ivey’s Proclamation but prior to the enactment of the ACIA. Thus, the suit attacked the Governor’s constitutional authority to afford immunity by Proclamation as well as the Legislature’s authority to make its immunity provision retroactive. In this case, the patient died while being transferred to another floor. There were no facts constituting wantonness. The Court ruled 7-1 that both the Proclamation as well as the ACIA were constitutional. The only dissent was from retiring Chief Justice Tom Parker. Justice Greg Cook recused himself from the case. With this opinion, the Court obviously remembered the extraordinary times healthcare providers went through during the COVID-19 pandemic. (Ex parte Jackson Hospital & Clinic, Inc. SC-2023-1060).
Many healthcare providers lost their lives saving others. While most people were locked up in their residences, healthcare providers were on the front lines. We all too quickly forget how difficult life was during the pandemic. To think that people would sue healthcare providers during that time for simple negligence is almost unfathomable, even for plaintiff attorneys. There are many cases alleging negligence still pending against healthcare providers that occurred during the pandemic. Hopefully, if those cases are not now voluntarily dismissed by the plaintiff attorneys, the sitting judges will follow the Alabama Supreme Court’s decisions and dismiss the cases that need to be dismissed.
In the end, this law is doing what it intended to do, temporarily supporting and not penalizing those who cared for all in the State at their own peril during an unprecedented time in our history.
Article contributed by Wendy Schurette, Risk Consultant for Inspirien, Bill McGowin, General Counsel, and Margaret Nekic, CEO/President.