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COVID-19 liability protection bill clears another hurdle

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Rep. Lawrence McClure

Rep. Lawrence McClure

A measure to protect businesses from COVID-19 liability has cleared another legislative hurdle, over the objections of trial lawyers, labor unions, and consumer advocates.

At a February 3 meeting, the House Pandemic and Public Emergencies Committee voted 11-6 to approve HB 7 by Rep. Lawrence McClure, R-Plant City.

“If you want to help people, then let them work,” said committee Chair Tom Leek, R-Daytona Beach and an attorney. “You’re going to have to provide employers some reasonable safeguard that they’re not going to get hit with an onslaught.”

Democratic committee members attempted to amend a provision that would require plaintiffs to pre-file a physician’s affidavit attesting that “within a reasonable degree of medical certainty” the defendant was to blame for the cause of action.

Rep. Fentrice Driskell, D-Tampa and an attorney, argued that a doctor would not be qualified to determine fault, especially before the legal discovery process has occurred.

“Wouldn’t that determination be up to the judge or jury, or the finder of fact, if you will?” she asked.

But Leek said that 20 years of practicing law has taught him that “there is no shortage” of medical experts.

“Doctors are not only able to tell you what the injury was, with a degree of specificity, and they can tell you what caused it,” he said.

Driskell offered an amendment that would have required a “qualified medical expert” to sign an affidavit attesting only that the plaintiff tested positive for COVID-19 when the cause of action occurred.

Leek countered that the amendment doesn’t define a “qualified medical expert.”

Driskell said she was contemplating a patient who is seen by a physician’s assistant or registered practical nurse.

“That just speaks to the whole complication of this bill, which is a trial before a trial,” Driskell said.

The amendment failed on a party line vote.

Supporters of the bill say the pre-suit process is modeled after barriers to litigation that lawmakers erected to protect doctors from medical malpractice claims.

But Rep. Carlos Guillermo Smith, D-Winter Park, said the Legislature erected the pre-suit barrier only after declaring an “overwhelming public necessity” due to a medical malpractice insurance crisis.

“What is the overwhelming public necessity for this requirement to have this pre-trial affidavit?” Smith asked.

Smith said he was also concerned that a measure doesn’t sunset after the pandemic is over.

“It essentially goes on forever, instead of just being temporary,” Smith said.

“Call me an optimist, I hope this doesn’t go on forever,” McClure said.

William Large, president of the Florida Justice Reform Institute, insisted that the concept is not novel.

He told the committee that 32 states and the District of Columbia have enacted some form of liability protections related to the COVID-19 pandemic, although some of those have been through executive action.

Seventeen of the 32 are similar to HB 7 in that they address “exposure liability,” Large said.

“What you’re doing is not unusual, other states have done this,” he said.

In addition to the pre-suit process, the bill has other barriers for plaintiffs.

If the suit proceeds, plaintiffs would have to prove that the defendant committed “gross negligence” and adhere to a “clear and convincing” evidence standard that exceeds the “preponderance of evidence” standard that applies in most civil suits.

Stephen Cain, secretary of the Florida Justice Association, said the measure would require a business to be guilty of “manslaughter” before a plaintiff could sue.

“It’s a complete bar to the courthouse,” Cain said. “There are just too many questions.”

Cain said the pre-suit process in the bill “would essentially make us try the case twice, once before the judge and again before the jury.”

“I am a medical malpractice practitioner, and I can tell you it’s not apples to apples,” he said.

Cain said his firm is handling six COVID-19 claims, including a worker who contracted the disease after the store he worked at banned masks.

“They were afraid of scaring their customers,” Cain said.

Offering businesses liability protection will encourage more unsafe policies, Cain said.

But Rep. Amber Mariano, R-Hudson, said the legislation will do just the opposite.

“I believe this bill protects our workers, by protecting our small businesses and keeping them employed,” she said.

The Civil Justice and Property Rights Subcommittee voted 11-6 to approve HB 7 on January 13. It has one last stop in the Judiciary Committee before reaching the House floor.

The Senate Judiciary Committee voted 7-4 to approve a companion measure, SB 72, on January 25. The measure, by Judiciary Chair Jeff Brandes, R-St. Petersburg, has two more committee stops, Commerce and Tourism, and Rules, before reaching the floor.

Both measures are on a fast track for the 2021 session that convenes March 2.

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