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Senate COVID-19 liability shield bill moves again

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Sen. Jeff Brandes

Sen. Jeff Brandes

A COVID-19 liability shield for medical providers is continuing to advance in the Senate, despite warnings by critics that it would put some of Florida’s most vulnerable residents at risk.

The Health Policy Committee voted 5-4 on March 3 to approve SB 74 by Judiciary Chair Jeff Brandes, R-St. Petersburg.

When the nation’s supply of PPE quickly became exhausted, doctors, nurses, and hospital workers in Florida donned shower caps and garbage bags to continue treating patients, Brandes said.

“They were there for us, they were there for our families, our communities, our neighbors, on the front end of this,” Brandes said. “We need to be here for them on the back end.”

But Democrats, trial attorneys, labor organizers, and consumer advocates argued that the bill would prevent injured patients and nursing home residents from pursuing legitimate claims.

Senate Democratic Leader Gary Farmer, a Ft. Lauderdale attorney, warned that the measure would send the wrong message to the small percentage of “bad actors” in the nursing home industry who put profits over patient safety.

“Ford didn’t build a safe Pinto until they started getting sued for building a Pinto that exploded,” Farmer said. “In this case, we’re talking about our most vulnerable citizens…veterans who stormed the beaches of Normandy.”

Farmer tried unsuccessfully to strip a provision of the bill that would grant immunity to providers if “supplies, materials, equipment, or personnel…were not readily available or were not available at reasonable cost.”

Farmer said medical providers could dismiss any claim simply by citing equipment or personnel shortages.

“When you talk about complete immunity for low staffing and inadequate PPE, there are so many considerations that come into play,” Farmer said. “We believe the jury should be able to consider the entire picture.”

But Brandes said the provision was central to his bill. He pointed out that Florida’s Division of Emergency Management couldn’t secure medical supplies at the height of the pandemic.

“If the head of the [Division] of Emergency Management can’t find masks, can’t find gowns, how in the world is a nursing home going to be able to find it?” Brandes said.

The amendment failed on a voice vote, as did a series of other Democratic amendments. One would have expanded the bill’s one-year statute of limitation to two years. Another would have exempted medical providers from the bill’s liability protection if they have been cited for infection control violations in the past three years.

Democrats also tried unsuccessfully to exempt elective surgical procedures from the liability protections, arguing that providers should know better than to schedule outpatient procedures if a nearby hospital is overrun with COVID patients and unable to provide emergency backup.

William Large, president of the Florida Justice Reform Institute, said 33 other states have attempted to enact some form of COVID-19 liability protections. Seventeen of those, Large said, adopted liability protections related to “COVID exposure.”

Critics of the bill also argue that a dearth of COVID-19-related liability suits a year into the pandemic proves that there is no need to create a liability shield.

But Orlando attorney Robin Khanal, who represents nursing homes, told the committee that his firm is currently handling 65 COVID-related cases, most of them in a pre-suit phase that follows the receipt of a notice of intent.

Brewster Bevis, senior vice president with Associated Industries of Florida, said regardless of whether there has been a wave of lawsuits, providers would rather be safe than sorry.

“It’s much easier to build a damn before the flood than during the flood,” he said.

SB 74 faces one more committee vote, in Rules, before reaching the Senate floor. A House companion, HB 7005 by Rep. Colleen Burton, R-Lakeland, also faces one more committee vote.

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