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Florida Politics

Christine Jordan Sexton - September 17, 2021

Current protections are set to expire in March.
As the delta variant continues to spread across the state, increasing COVID-19 infections, Florida lawmakers may once again be asked to provide legal protections for health care providers.

Florida Justice Reform Institute President William Large told Florida Politics Tuesday, “there is a need” to extend COVID-19 protections lawmakers approved during the 2021 Legislative Session. Unlike protections for general businesses, the health care provider liability protections cleared earlier this year will expire in March 2022.

“It needs to be extended until the crisis abates. With developments concerning the delta variant, it is now necessary to extend the protections,” said Large, whose group is dedicated to protecting businesses from lawsuits.

And Large isn’t alone in his thinking.

Jacksonville health care lawyer and specialty physician lobbyist Chris Nuland said Florida doctors also need continued protection from medical malpractice lawsuits.

“Unless the pandemic quickly and permanently subsides, it will need to be extended,” Nuland said.

While the Legislature agreed to protections from medical liability and nursing home tort claims, the immunity for physicians and nursing homes expires at the end of March.

According to an AARP analysis of federal data, that could be problematic for Florida’s nursing homes, which had the second-lowest percentage of vaccinated staff in the nation earlier this summer.

Florida Health Care Association spokesperson Kristen Knapp said the nursing home group still was reviewing whether to ask the Legislature to extend the protections. 

“The liability protections are important so providers can maintain the resources they need and stay focused on keeping our long-term care residents safe and well cared for,” Knapp said in a statement, noting the pandemic “has continued to impact our caregivers who are delivering care in what is still a challenging environment.”

The 2021 law offers businesses — ranging from small family-owned shops to large car rental companies to health care providers — broad immunity from COVID-19-related liability suits.

For COVID-19 personal injury suits that don’t allege medical malpractice or violations of nursing home resident rights, the law requires plaintiffs to get a signed affidavit from a state-licensed physician attesting the defendant was the cause of the plaintiffs’ injuries or damages. 

The defendants are immune from liability if the court determines they tried to substantially comply with government-issued health standards or guidance.

In COVID-19 medical malpractice claims or nursing-home-related claims, the plaintiffs are not required to secure physician affidavits. But plaintiffs are required to prove that the health care providers’ actions were grossly negligent. If not, health care providers who substantially comply with authoritative or applicable government-issued health standards or guidance related to COVID-19 have immunity.

LeadingAge Florida, another group representing nursing homes and other long-term care providers, also wants extended liability protections.

“While we cannot yet comment on any specifics or proposals, given the challenges that the pandemic has, and continues to present to long-term care providers, LeadingAge Florida is supportive of an extension of reasonable COVID liability protections,” LeadingAge Florida spokesperson Nick van der Linden said.

As the delta variant has swept across the state recently, Florida hospitals admitted a record number of patients with COVID-19. Before Gov. Ron DeSantis established state-supported centers for monoclonal antibody treatments, he encouraged patients to get the treatments from hospitals.

Safety Net Hospital Alliance of Florida Chief Executive Officer Justin Senior said his member facilities “probably” want to see the COVID-19 protections extended, also.

“The key for our members is protection when they make good-faith decisions to postpone certain procedures, as well as when they prescribe or recommend something in good faith that doesn’t have full FDA approval but only emergency use authorization,” Senior said.

Former Senate Judiciary Committee Chair Sen. Jeff Brandes championed COVID-19 liability protections in the Senate, but he no longer heads that committee. Sen. Danny Burgess now holds that post.

The House Judiciary Committee also has seen a change in leadership. 

House Speaker Chris Sprowls announced Friday Rep. Erin Grall will chair the powerful House Judiciary Committee. Former committee chair Rep. Danny Perez will chair the Pandemic and Public Health and the Public Integrity & Elections committees.