COVID-19 legal protections for health industry back by lawmakers

A measure that would provide broad immunity to nursing homes, hospitals and physicians from coronavirus-related lawsuits moved through a Florida Senate committee Wednesday, despite warnings from Democrats that the legislation would prevent people from pursuing legitimate claims.

The Senate Judiciary Committee voted 6-4 to advance the bill (SB 74), putting it on track to be taken up by the full Senate early in the legislative session that starts in March.

Committee Chairman Jeff Brandes, R-St. Petersburg framed the bill as a way to "do everything we can do to support health-care workers at this time."

"I think we have to understand that a fundamental shift has occurred in this state in the last year," said Brandes, who is also the bill sponsor. "And if they are going to be there for us, we gotta be there for them."

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But Democrats on the committee worried that the bill went too far.

"We cannot close the door to the courts against residents and families who have legitimate, legitimate claims." Sen. Audrey Gibson, D- Jacksonville, said. "Not every nursing home or ALF (assisted living facility) is up to the same standard as others. We have to look at that when we deal with this bill."

Committee members debated --- and shot down --- four proposed amendments before voting along party lines to advance the bill to the Senate Health Policy Committee. All the amendments were offered by Democrats, and all were opposed by Brandes.

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For instance, Sen. Perry Thurston, D-Fort Lauderdale, offered an amendment that would have excluded from the liability protections health-care providers that had been cited by state or federal authorities for infection-control deficiencies during the three years before the 2020 declaration of a COVID-19 public health emergency. Thurston said the amendment would ensure that the legal protections were targeted to facilities that warranted them and not to all nursing homes.

But Brandes called the amendment "absurd." And while Thurston said he would be willing to reduce the lookback period for deficiencies from three years to one year, the proposed amendment was defeated in a voice vote.

Brandes’ bill would define COVID-19 lawsuits as claims, "whether pled as negligence, breach of contract or otherwise," that could allege failure by health-care providers to meet certain standards or guidance. Plaintiffs would have one year after illnesses, deaths or injuries to file COVID-19-related claims against the providers.

Under the proposal, plaintiffs would have to prove --- by the greater weight of the evidence --- that defendants were grossly negligent or engaged in intentional misconduct.

Sen. Tina Polsky, D-Boca Raton, worried that the gross negligence standard would be too difficult to prove and proposed an amendment to replace gross negligence or intentional misconduct with an easier-to-meet negligence standard. 

Polsky also proposed an amendment that would have deleted from the bill a provision that proponents and opponents agreed is not clear. The bill would provide  immunity from COVID-19 clams "if supplies, materials, equipment, or personnel necessary to comply with the applicable government-issued health standards or guidance at issue were not readily available or were not available at a reasonable cost."

Polsky, an attorney, said that part of the bill would give health-care providers "complete immunity" and said the "readily available" standard is too low.

"I believe that a facility should have to make every effort to provide (personal protective equipment)  and staffing support," she said.

Mark Delegal, a lobbyist who represents The Doctors Company, MAGMutual Insurance Co., and ProAssurance Corp., opposed Polsky’s amendment. But Delegal conceded that the part of the bill targeted in Polsky’s amendment wasn’t clear.

"This language is subject to maybe some lack of clarity, and maybe it could be improved," Delegal said, adding he didn’t think it offered blanket immunity and that cases could still be brought against providers.

Brandes said he would work to"refine" the language.

Sen. Darryl Rouson, a St. Petersburg Democrat who is an attorney, also unsuccessfully proposed an amendment that would have increased the time for filing COVID-19-related claims from one year to two years, which is the statute of limitations in medical malpractice cases,

Health care providers have been calling for protections from COVID-19-related lawsuits since the onset of the pandemic. The Florida Medical Association, the Florida Osteopathic Medical Association, and the Florida Justice Reform Institute in March 2020 requested that Gov. Ron DeSantis issue an executive order protecting physicians from malpractice lawsuits for care provided during the pandemic.

Hospitals and nursing homes quickly followed suit, sending a letter to the governor on April 3 asking for immunity from civil and criminal liability for "any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services" during the pandemic. In both instances, the governor declined the requests.

The committee vote Wednesday was the first action the Republican-led Legislature has taken to protect health-care providers from COVID-19-related lawsuits. The House Health & Human Services Committee is expected to consider its version of the bill (PCB HHS 21-01) next week.

The House and Senate bills have significant differences on issues such as how long legal protections should be in effect and types of lawsuits that would be limited. Ultimately, they would have to agree on a final version.

GOP lawmakers have promised to make limiting COVID-19-related lawsuits a top priority for the 2021 session, which will begin March 2.

Most of the lawsuit relief efforts have focused on non-healthcare businesses. The House and Senate released identical bills (HB 7 and SB 72)  in January that address those businesses and have moved them quickly through the committee process.

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