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Florida lawmakers pacing other states in COVID-19 liability bills – and their session hasn’t even started yet

By John Haughey | The Center Square contributor - February 18, 2021

Colleen Burton  Florida Rep. Colleen Burton, R-Lakeland. - Steve Cannon / AP

(The Center Square) – At least 27 states have enhanced liability protections for healthcare providers and medical facilities through legislation or via emergency executive orders since the COVID-19 pandemic emerged last March.

With 48 state legislatures across the nation now in session, adopting general COVID-19 liability protections for businesses is an urgency.

Lawmakers in Missouri, Nebraska, Montana, New Hampshire and North Dakota are among those pondering pending bills. Indiana lawmakers in January sent a broad business liability package to Gov. Eric Holcomb for signing.

Meanwhile, lawmakers in Washington, Idaho, New Jersey and Pennsylvania are among those reviewing COVID-19 liability bills that specifically address healthcare practitioners, providers, hospitals, nursing homes and assisted living facilities (ALFs).

Alabama lawmakers have already adopted a 2021 bill signed by Gov. Kay Ivey implementing COVID-19 immunity measures for ALFs and other healthcare facilities.

Florida lawmakers are trying to do both, even though their 60-day session doesn’t begin until March 2. House Bill 7, filed by Rep. Lawrence McClure, R-Dover, has already passed through three House hearings and is poised for adoption in March.

Its Senate companion, Senate Bill 72, introduced by Sen. Jeff Brandes, R-St. Petersburg, is two hearings away from the Senate floor.

HB 7/SB 72 would extend COVID-19 protections to businesses, schools, nonprofits and religious institutions that make a “good-faith effort” to follow government health guidelines, but exclude healthcare providers from its provisions.

Proposed liability shields for healthcare providers that “substantially” follow government-issued standards and guidance are addressed in SB 74, also filed by Brandes, and PCB HHS 21-01, proposed by the House Health & Human Services Committee.

Both bills extend protections to healthcare providers that “substantially” follow government-issued standards and allow plaintiffs one year to bring a COVID-19-related claims after a death, hospitalization or diagnosis. The House proposal increases liability standards for filing lawsuits from "negligence" to "gross negligence," and from a "preponderance of evidence" to "clear and convincing."

The House Health & Human Services Committee Wednesday approved PCB HHS 21-01 in a 17-3 vote following a two-hour discussion that ended only after chair Rep. Colleen Burton, R-Lakeland, promised more discussion on the bill in coming weeks.

“It’s a complicated issue and it’s an emotional issue – and it’s only a six-page bill,” she said, inducing four of the panel’s seven Democrats to tentatively advance the measure.

Burton said the bill would protect healthcare providers from frivolous lawsuits while providing victims of negligence an avenue to seek restitution.

“These healthcare heroes are on the front line and must not only care for themselves, but also potentially vulnerable patients and residents,” Burton said. “They have done so day-in and day-out for the last year, oftentimes without adequate PPE and while experiencing staffing shortages.”

The one-year statute of limitations and a one-year sunset will ensure the “extraordinary protections” apply only to pandemic-related claims, she said. “Hopefully the pandemic will be over within the next year,” she said.

State business interests, the Florida Justice Reform Institute and LeadingAge Florida, which represents more than 500 ALFs and 140 businesses, are among prominent proponents.

The Florida Justice Association, Florida AFL-CIO, Florida National Organization for Women and the AARP oppose the measure.

Rep. Michele Rayner, D-St. Petersburg, a civil rights attorney, said the bill hurts plaintiffs, protects corporations and is unlikely to survive legal challenges.

“I represent consumers. I represent patients. I represent hard-working people,” she said. “And my concern is – I understand we are in an unprecedented time, and I understand we have to make adjustments – let’s not do it at the cost of making sure people who are truly injured by bad actors are not able to recover.”