Florida lawmakers respond to COVID-19 with ... tort reform
The Columbia Restaurant during the pandemic last year. [ BOYZELL HOSEY | Times ]
By Mary Ellen Klas - January 14, 2021
TALLAHASSEE — In response to businesses, schools, churches and healthcare providers that worry they could be sued for legal liability for exposing people to COVID-19, Florida legislators are fast-tracking a measure to do what they know best: limit lawsuits.
Meeting for the first time since the onslaught of the pandemic, the House Subcommittee on Civil Justice and Property Rights approved HB 7 along party lines on Wednesday. It will establish new barriers to lawsuits related to COVID-19. An identical bill is pending in the Senate for consideration during the 2021 legislative session, which starts March 2.
A second measure that would shield nursing homes, hospitals and other healthcare providers by raising the standard for COVID-19 liability is being drafted by the House Health and Human Services Committee, which held a workshop on the issue Thursday.
But it’s unclear what the need for the measure is, and several lawmakers are calling for more immediate measures to help businesses address their financial woes.
Rep. Lawrence McClure, a Dover Republican who is sponsoring HB 7, admitted there were “fewer than 10” lawsuits that have been filed in Florida with claims related to COVID-19. But he said the bill was necessary “to reduce the threat of potential civil liability.” Other estimates of the number of COVID-related lawsuits are higher.
“This bill is intended to give clarity to Florida businesses that if they are making a good faith effort to comply with regulations, they will not have the cloud of potential frivolous litigation hanging over their head,’' McClure said. “It’s the fear of frivolous lawsuits as this evolves.”
Opponents, which include consumer advocates, unions for healthcare workers, and plaintiffs lawyers, argued that the bill raises the standard of gross negligence and raises the burden of proof so high that it will make it almost impossible for anyone who accuses an employer or business for endangering them.
Sen. Gary Farmer, the Senate Democratic leader from Fort Lauderdale who is a trial lawyer, said there is no need for the legislation because the threshold for proving someone got COVID-19 from exposure to a business or a place of employment is already so high that few lawyers are willing to take the cases.
To win a case, a plaintiff must show that the defendant “breached the duty” to follow the established standards to protect customers or employees, and also prove they caught COVID-19 at that establishment, he said.
But because of the community prevalence of the virus “you’re never going to be able to prove that you caught COVID that any particular place,’' Farmer said.
Burden of proof is on doctors
HB 7 puts the burden of filing a lawsuit almost entirely on the word of a physician who must attest “to the physician’s belief, within a reasonable degree of medical certainty, that the plaintiff’s COVID-19-related damages, injury, or death occurred as a result of the defendant’s acts or omissions,’' the bill states.
A judge would then determine whether the business “made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.”
Curry G. Pajcic of the Florida Justice Association, which represents plaintiffs lawyers, told the House Civil Justice Committee that the bill is unconstitutional because it “makes the judge the jury” and uses “impossibly high standards that no one can meet.”
Rep. Ben Diamond, a St. Petersburg Democrat, attempted to amend the bill to clarify how and when a physician’s affidavit would be used. The committee rejected the attempts along a party-line vote.
The measure is a top priority of the state’s influential restaurant, lodging and entertainment industry. A 40-member industry task force that included representatives of restaurants, hotels, nursing homes, retailers, home builders and insurers met over the summer and concluded the higher standards were needed.
William Large, president of the Florida Justice Reform Institute, told the committee that he found 53 lawsuits have been filed against nursing homes by staff, patients and their families, cruise lines by passengers and crews, tour companies by customers in refund disputes and a host of workplace clashes tied to the coronavirus.
He argued that if Florida raises its litigation standards for COVID-19 liability it would join 16 states that have raised the standard of care in medical liability cases and 17 states that have addressed exposure liability.
The coalition had TaxWatch, the business-backed research organization, to draft a report that concluded that because of the threat of lawsuits employers could lose confidence in the economy and the state could lose billions in business activity and thousands of jobs.
Hundreds of lawsuits have been filed related to COVID-19 in Florida, according to a COVID-19 complaint tracking site created by the law firm Hunton Andrews Kurth. Few of the cases relate to liability because of exposure to COVID-19, and the majority are a result of businesses suing their insurer for refusing to cover their business interruption insurance.
Samantha Padgett, general counsel for the Florida Restaurant & Lodging Association, said the legislation was necessary to put their industry “in a better position than they are in now.”
She spoke of unclear regulations and confusion “trying to adhere to conflicting regulations.” She made no mention of pending lawsuits or liability.
What about small business?
Democrats argued that legislators could do more to help small businesses by drafting bills to address concerns they said were more immediate, such as meeting their loan and rent obligations or creating bridge loans to keep them in business.
“What really frustrates me is that we have all these very real small-business challenges and no one’s saying this is one of them,’' said Rep. Anna Eskamani, an Orlando Democrat. “The biggest phone calls I get are around, ‘I need rent relief, and I need my unemployment,’ and nothing comes to me about this issue.”
Rep. Michael Gottlieb, a Davie Democrat, urged the House to narrow the focus of the bill.
“We’ve got bad actors that are lawyers, there’s no doubt about that,’' he said. “Why are we not having a bill that punishes the bad actors for filing frivolous lawsuits? And I think that’s a better solution to the problem that we have.”
Lakey Love of the Florida Policy Action Network said she represented working-class people and indicated she was concerned the bill would put workers at higher risk if employers were shielded from protecting them.
A separate bill for healthcare providers
The House Health and Human Services Committee also plans to draft legislation to give healthcare providers, including nursing homes, protection from lawsuits.
Mel Beal, CEO of Airamid Health Services, which represents 40 skilled nursing facilities and three assisted-living facilities across Florida, said that the absence of guidance from the state and federal authorities, as well as conflicting guidance about handling COVID-19, increased the exposure of businesses.
“The threat of litigation against long-term care professionals is not theoretical, it’s real, and it’s ongoing,’' he said. He said relief was needed to protect against the expense of “sue to settle” threats in which attorneys demand information as a precursor to a lawsuit to force potential defendants to settle without going to court.
But Sam Brooks, project manager for the National Consumer Voice for Quality Long-Term Care, national consumer advocacy organization long-term care, said that most cases that are emerging are when nursing homes “fail to provide basic care” and residents and their families seek more information.
“In many situations, the courts may be the only potential source of justice for residents who were harmed,’' he said. “Removing access to the court could be devastating and perpetuate harm to residents” and “make workers less safe by allowing participants to deteriorate inside a facility.”
But Thomas S. Edwards, Jr, a Jacksonville trial lawyer at a workshop before the House Health and Human Services Committee on Thursday called the measure “a solution in search of a problem.”
He said he has reviewed the cases filed so far and only six are from exposure to COVID.
He argued that if a healthcare facility “was not following the most basic standards or practices that have been in place for years, then they may get sued.” But because there are “fluctuating standards” and they’re following basic standards of care, “then they’re going to have protection from the standpoint of being sued.”
Beal said relief was needed to protect against the expense of “sue to settle” threats in which attorneys demand information as a precursor to a lawsuit to force potential defendants to settle without going to court.
A similar effort to expand COVID-19 liability protections for businesses was attempted in Congress, but Senate Majority Leader Mitch McConnell tried and failed to get a measure included in the stimulus plan that passed in December.