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COVID liability shield measure poised to pass in both chambers

Senior Editor Top Stories

Bills to include a one-year sunsetting provision

VirusThe Senate has approved an expanded COVID-19 liability shield that protects businesses, schools, and religious institutions, as well as doctors, hospitals, nursing homes, and other medical providers.

The Senate voted 24-15 on March 18 to approve SB 72 by Judiciary Chair Jeff Brandes, R-St. Petersburg.

“Under these difficult circumstances, we should discourage opportunistic lawsuits, and help people get back to work,” Brandes said.

Doctors, nurses, and nursing-home caregivers deserve liability protections because they risked their lives to continue treating patients when protective equipment was unavailable, Brandes said.

“At the end of the day, they were there for us last year and we’ve got to be there for them now,” he said.

Before the final vote, Brandes introduced an amendment that conforms the medical portion of his bill to a House companion, HB 7005, by Rep. Colleen Burton, R-Lakeland.

Unlike the House, the Senate medical provider package did not include a one-year sunsetting provision. Brandes argued against an attempt to add a sunsetting provision earlier this month, saying the COVID-19 pandemic could linger due to the discovery of vaccine-resistant variants.

But Brandes signaled on the floor that he has changed his mind.

“In our negotiations with the House, we have agreed to this final amendment,” he said. “This will allow us to come back next year and make sure that we got it right.”

The House voted 83-31 on March 5 to pass HB 7 by Rep. Lawrence McClure, R-Plant City. The measure protects businesses, schools, and religious institutions and is identical to the business portion of the Senate bill.

HB 7005, which protects medical providers, still awaits a vote by the full House. But with most substantive differences between the two chambers apparently worked out, final passage could come shortly.

SB 72 would establish, among other things, a pre-suit process that gives judges the ability to dismiss claims against businesses that demonstrate “substantial” compliance with government health regulations.

Plaintiffs suing businesses would be required to pre-file a physician’s affidavit attesting that the defendant’s acts or omissions were responsible for the plaintiff’s illness, injuries, or death.

To successfully sue medical providers, plaintiffs would have to overcome heightened evidence standards and prove that the defendant committed “gross negligence” or “intentional misconduct.”

Democrats and other critics, including the Florida Justice Association, labor unions and consumer advocates, have argued that the measures will prevent injured patients from pursuing legitimate claims.

Senate Democratic Leader Gary Farmer, a Ft. Lauderdale attorney, warned that the measure will protect the “bad apples” — the small number of nursing-home operators who are responsible for most patient injuries.

“If they don’t do the right thing, if they don’t take reasonable care, they should be held responsible,” he said. “This bill just goes too far, it potentially slams the courthouse door to the most frail, elderly residents of this state.”

Farmer added that the courts already have the tools they need to weed out frivolous claims.

“The common law is an amazing thing in its agility and flexibility,” he said.

House Speaker Chris Sprowls, R-Palm Harbor and an attorney, told the News Service of Florida that his chamber intends to pass the bill and send it to Gov. Ron DeSantis next week.

“We anticipate picking up that bill, passing it and getting it to the governor’s desk as soon as possible,” the speaker said. “They have made some amendments based on our negotiations, so this was a negotiated product with the Senate.”

The Florida Chamber of Commerce, one of a handful of business groups supporting the legislation, issued a statement after the Senate passage.

“[P]assage by the Senate of the combined business and health care COVID-19 liability protections legislation is another supportive step in the continued relaunching of Florida’s economy,” wrote President and CEO Mark Wilson. “The bill provides much needed certainty to job creators that if they are doing their part to keep employees, customers and patients safe, they will not be party to frivolous litigation.”

 

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