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House takes up COVID protection for hospitals, doctors, and nursing homes

Senior Editor Top Stories

coronavirusA measure that would protect hospitals, doctors, nursing homes, and other providers from COVID-19-related lawsuits has cleared its first committee in the House.

The Health and Human Services Committee voted 17-3 on February 17 to approve PCB HHS 21-01. Another measure, HB 7, that is designed to protect businesses, is headed to the House floor for the session that convenes March 2.

“These health-care heroes deserve protections from frivolous lawsuits,” said Committee Chair Colleen Burton, R-Lakeland.

The Senate Judiciary Committee voted 6-4 on February 10 to pass a companion measure, SB-74, by Chair Jeff Brandes, R-St. Petersburg. It faces two more committee stops.

PCB HHS 21-01, like HB 7, would require plaintiffs making non-medical negligence claims to file a pre-suit affidavit from a physician attesting “with a reasonable degree of medical certainty” that the defendant was to blame.

The bill creates an “affirmative defense” for COVID-19-related medical claims that the defendant “complied with government-issued health standards or guidance in effect at the time the cause of action accrued.”

To prevail, plaintiffs would have to prove that the defendant was grossly negligent or acted with intentional misconduct.

Rep. Michele Raynor, D-St. Petersburg and an attorney, said she couldn’t vote for the measure because it would set “too high a bar” for clients with legitimate claims.

“I represent consumers, I represent patients, I represent hard-working people,” she said. “I understand we have to make adjustments, but let’s not do it at the cost of making sure people who are truly injured by bad actors are not able to recover.”

Unlike the Senate version, the House bill would “sunset” or expire after a year.

“We have time to come back and reenact it if it becomes necessary,” Burton said.

COVID-19 liability protections are considered a top priority of Senate President Wilton Simpson, R-Spring Hill, and House Speaker Chris Sprowls, R-Palm Harbor and an attorney.

“Our health-care providers should be concerned with patients’ health, not unnecessary legal defense when they’re doing the right things to protect themselves, the people under their care, and the visitors to their facilities,” Sprowls said when the bill was filed.

The measure has the backing of the Florida Medical Association and the Florida Health Care Association, which advocates for the nursing home industry.

When the pandemic struck, hospitals kept their doors open despite a critical shortage of protective gear, said Florida Hospital Association lobbyist David Mica.

“Babies kept being born, emergency rooms stayed open,” he said. “These are institutions that work in your back yard, they’re part of your community.”

But critics, including some Democrats, trial attorneys, consumer advocates, and labor unions, say the measure would reward bad actors.

“Torts are supposed to be a disincentive for bad behavior,” said Florida AFL-CIO political director Rich Templin.

The Florida Justice Association, which represents trial attorneys, says the absence of a flood of litigation nearly a year into the pandemic proves the bill is unnecessary.

But Orlando attorney Robin Khanal, a partner with Quintairos, Prieto, Wood & Boyer, said his firm is handling 60 cases for the nursing homes it represents, all of them in a pre-suit phase.

“There is a large wave that is coming, it has started,” he said.

Chris Nuland, a Jacksonville attorney who lobbies for physician groups, said doctors deserve to be rewarded.

“This bill protects those who put themselves in harm’s way to protect us,” he said.

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