February 23, 2021

Alabama Act No. 2021-4 (SB30 – Orr) was recently signed into law. The Act supplements the liability protections for health care providers and other businesses under existing law. It is patterned after the liability protections from Governor Ivey’s Eighth Supplemental Emergency Declaration from May 5, 2020 and is nearly identical to a similar bill introduced in the 2020 Legislative Session.

The Act provides immunity for covered entities, including businesses, health care providers, and governmental entities, against health emergency claims arising from COVID-19 exposure or any efforts of the covered entity to prevent or delay the spread of COVID-19. This could include testing, contact tracing, using or supplying precautionary equipment or supplies, and providing health care services or treatment. Specific to health care providers, it provides immunity for damages, injury, or death related to any act or omission of the health care provider during the provision of health care services or treatment that resulted from, was negatively affected by, was negatively impacted by a lack of resources caused by, or was done in response to, the COVID-19 pandemic or the State’s response to the pandemic.

Absent, wanton, reckless, willful, or intentional misconduct, covered entities are immune from liability for any damages, injury, or death related to a health emergency claim or the provision of health care services or treatment. The Act also has several savings provisions to protect covered entities from negligence, premises liability, and other non-wanton, non-willful, and non-intentional civil causes of action where a court determines that the immunity provisions above do not apply, unless the plaintiff proves by clear and convincing evidence that the covered entity did not reasonably attempt to comply with then-applicable public health guidance. Furthermore, the Act is not intended to supersede, amend, or modify any protections for health care providers under existing law such as the Alabama Medical Liability Act of 1987 or the Medical Liability Act of 1996, to the extent a court determines the immunity provided by the Act does not apply to a health care provider.

In situations where immunity does not to apply and liability is proven, damages may be limited to economic or compensatory damages for cases not involving serious physical injury, or an award of punitive damages only in a wrongful death case. All claims must be filed within two years of the date of damages, injury, or death.

The Act applies retroactively to any cause of action filed on or after March 13, 2020 (the date of the Governor’s first emergency declaration), and continues until the later of December 31, 2021 or one year following the expiration of the COVID-19 public health emergency.

Health care providers and other covered entities should consult with their legal counsel to determine appropriate measures to be taken to receive maximum protection under the Act.

This Insight is intended only to provide an overview of the matters addressed herein and does not constitute legal advice.  If you have any questions regarding a specific issue, please seek appropriate legal counsel.