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Bill adds COVID liability protections for medical providers

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Sen. Jeff Brandes

Sen. Jeff Brandes

Medical providers would receive additional protections from COVID-19-related lawsuits under a measure that is now advancing through the Florida Senate.

The Senate Judiciary Committee voted 6-4 to approve SB 74 by Chair Jeff Brandes, R-St. Petersburg, on February 10. A House version, PCB HHS 21-01, has yet to be heard.

Noting that the pandemic has killed more than 28,000 Floridians, Brandes said the legislation is needed to protect front-line medical workers who donned “shower caps, trash bags, and handmade masks” to keep working in the face of a critical PPE shortage.

“We have lost thousands of health-care workers through that struggle around the country,” he said. “We are asking through this legislation, that we protect our health-care industry.”

Brandes is also sponsoring a separate bill that would give businesses, schools, and religious institutions a COVID-19 liability shield if they can demonstrate that they complied with health guidelines.

But unlike the business liability measure, and the House version of the medical liability bill, SB 74 does not contain a provision that would require plaintiffs to pre-file a doctor’s affidavit attesting that “to a reasonable degree of medical certainty” the defendant was to blame.

Instead, SB 74 would apply to COVID-19 claims “whether pled as negligence, breach of contract or otherwise against a health care provider” alleging that health-care providers failed to follow clinical or government-issued health standards or guidance related to COVID-19; failed to properly interpret or apply the standards or guidance in providing health care, allocation of scarce resources, or assistance with daily living; or failed to follow government-issued health standards or guidance relating to infectious diseases if there were no applicable standards and guidance specific to COVID-19.

The measures are considered a priority of the Senate president and House speaker. They have the backing of the Florida Medical Association and the Florida Health Care Association, which advocates for the nursing home industry.

“Our long-term caregivers should be able to do their jobs without worrying about being sued for making decisions to safeguard residents and doing the best they could when even health-care experts were unable to agree on proper protocols,” FHCA executive director Emmett Reed said in a written statement supporting SB 74.

But critics, including Democrats, labor unions, consumer advocates, and trial lawyers say existing law already contains barriers to protect medical providers from frivolous lawsuits.

“We don’t have a flood of litigation,” Florida Justice Association secretary Steve Cain told the committee. “This is not a problem, this a solution in search of a problem.”

But at least one other trial lawyer disagreed.

Robin Khanal, an Orlando attorney who represents assisted living facilities, told the committee that his firm is handling 60 COVID-19-related cases, most of them in a pre-suit phase involving notices of intent, discovery, or arbitration.

“They are framed by the use, or misuse, of PPE,” Khanal said.

“You have the documentation of these 60 cases that you can provide to us?” Sen. Perry Thurston, D-Ft. Lauderdale, asked..

Khanal said the cases are in an early stage of litigation and not yet public record.

Sen. Tina Polsky, D-Boca Raton and an attorney, tried unsuccessfully to strike a provision from the bill that would grant immunity from a COVID-19-related claim “if supplies, materials, equipment, or personnel necessary to comply with the applicable government-issued health standards or guidance at issue were not readily available at a reasonable cost.”

Polsky argued the provision would give negligent providers too big of an escape hatch.

“I think the jury should be able to consider the entire picture…and failure to provide PPE could be just a part of it,” she said. “Whether or not PPE, or adequate staff was not readily available, is a very low standard.”

Polsky also tried, unsuccessfully, to remove a provision of the bill that requires plaintiffs to prove that the medical provider acted with “gross negligence” or “intentional misconduct.”

“We appreciate our health-care providers and understand that these are not normal times…[but] patients deserve the protection of the law,” she said. “My amendment deletes these impossible-to-meet standards.”

Polsky asked Brandes for an example of a grossly negligent act that would meet the bill’s definition.

Brandes described a medical provider who knowingly orders a COVID-19 infected staff member to report to work.

Sen. Thurston offered an amendment that would strip immunity protections from providers who had been cited by a state or federal regulators for “one or more infection prevention and control deficiencies” in the three years prior to a declaration of a state of emergency.

“We just want to make sure that if we are going to be giving this kind of blanket protection, that it is warranted,” he said.

The amendment also failed.

In addition to not requiring a physician’s affidavit, SB 74 contains other significant differences from the House version. The House version requires plaintiffs to meet a “clear and convincing” evidence standard, the Senate bill does not.

The House bill would give judges the ability to dismiss lawsuits if the defendant made a “good faith effort to substantially comply with any authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.” The Senate bill does not.

Chris Nuland, a Jacksonville attorney who lobbies for physician groups, calls both bills “good pieces of legislation.”

“As always, we anticipate changes to the bill, and there are minor enhancements that Organized Medicine would like to include, but this is truly an excellent start to help our health-care heroes,” he said.

Critics question the sponsor’s priorities.

“We also represent individuals, nurses, doctors, the residents, above and beyond the executives of the facilities,” Polsky said. “We can’t legislate assuming that every lawsuit is frivolous, and every lawyer is out to shut down nursing homes.”

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