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Tampa Bay Times

Florida Legislature extends COVID liability protections. Are they still needed?

Is the immunity law a necessary protection or an unreasonable hurdle for those seeking justice?

COVID tent

A registered nurse examines a potential COVID-19 patient inside a triage tent outside Lee Memorial Hospital in 2020 in Fort Myers.

By Kirby Wilson and Hannah Critchfield
February 10, 2022

TALLAHASSEE — Florida’s coronavirus state of emergency expired 229 days ago.

But in health care facilities, the pandemic is still very much ongoing, according to backers of a bill headed to Gov. Ron DeSantis’ desk.

The measure, Senate Bill 7014, extends a law passed last year that made it harder to sue health care providers in COVID-19 cases. The liability protections, which have drawn criticism from patient advocates, are set to expire March 29; the bill would extend those protections until June 1, 2023.

“When there is no standard of care or when the standard of care is so dynamic and shifting from variant to variant, you cannot hold a health care provider liable in those instances,” said Dr. Ralph Massullo, a dermatologist and Republican state representative from Lecanto.

The House on Thursday passed the bill 87 to 31 after about ten minutes of debate, with all present Republicans and 10 Democrats voting in favor.

An identical measure cleared the Senate last month on a mostly party-line vote. The bill will head to DeSantis next. If he signs it, it will immediately become law.

Since signing the liability protections last year, DeSantis has taken a series of steps to roll back pandemic-related restrictions, saying Floridians have to learn to live with the virus. After the state of emergency expired in June, DeSantis pushed for policies restricting a school’s ability to mandate masks. His Department of Health has suggested that people don’t need to test for the coronavirus if they’re asymptomatic.

DeSantis has not yet taken a position on the proposed renewal, according to Christina Pushaw, a spokesperson for the governor.

“The scientific consensus that the virus will not be eradicated in the foreseeable future does not necessarily negate the argument for liability protections in the healthcare space,” Pushaw wrote Thursday in an emailed statement.

The 2021 bills initially offering the protections to health care companies and businesses were top priorities of Republican leaders last session. They were also contentious measures that were subject to hours of legislative debate.

Under the bills, families or residents seeking to sue a health care provider for a COVID-19-related injury or death would need evidence that a specific individual acted with intent to harm or showed a conscious disregard for the infected person’s life. Though at least 18 other states passed similar health care immunity legislation, Florida’s included a particularly steep requirement — plaintiffs must obtain a doctor’s statement, made under oath, backing their claim.

The measures also included sweeping protections for non-health care businesses. The legislation did not put an expiration date on those protections.

Democrats and advocates for consumers and patients argued the legislation created an unreasonable hurdle for people with legitimate claims of coronavirus-related neglect.

Some critics say those arguments still hold true.

“It shouldn’t have been implemented in the first place,” said Zayne Smith, associate state director of advocacy at AARP Florida. “For one year, OK, it got done. But what’s the need now? Where’s the empirical data that shows that this needs to continue?”

This year’s extension measure moved more seamlessly through the Legislature than last session, with less debate and more Democrats voting in favor of it.

That’s despite continued concerns from advocates about granting sweeping liability protections for well-heeled health care corporations like nursing homes and hospitals.

“I think just this blanket extension is not necessary,” said Rep. Joseph Geller, D-Aventura. “If this was health care, we’d be using a scalpel. And I think we’re using an ax here instead. It’s too broad.”

Both the Florida Health Care Association, which represents 80 percent of the state’s nursing homes, and the Florida Justice Association, which speaks on behalf of trial attorneys, referred the Times/Herald to Hunton Andrews Kurth, a law firm that maintains a tracker of COVID-19-related lawsuits in every state.

In total, 15 complaints — related to wrongful death, malpractice or other alleged wrongdoing — have been filed against medical providers of any type in Florida since the law went into effect on March 29, 2021, according to that firm’s database. In the year before the law went into effect, the state had 42 such COVID-related claims, according to the database.

Comparatively, New York, which has a slightly smaller population, rolled back its broad liability protections in April 2021 as Florida was enacting them. It’s seen 19 of those COVID-related claims since then.

In an emailed statement, William Large, president of the Florida Justice Reform Institute, a group created by the Florida Chamber of Commerce in 2005 that backs initiatives to limit lawsuits, said there were so few cases in Florida because “the law is working.”

 “We need to keep the law in place for another 14 months, and continue to give our health care providers a reprieve from lawsuits so they can focus on doing their jobs during these demanding times,” Large said.

Stephen Cain, Miami-based personal injury attorney at Stewart Tilghman Fox Bianchi & Cain, said the law has made it difficult to pursue even cases that do not deal with COVID-related harms.

“We had a case where a family member was getting treatment for COVID and ultimately, a mistake was made with a feeding tube that had been inputted,” he said. “The person ended up getting very sick and ultimately passed away several months later not because of COVID, but because of the infection caused by the dislodged feeding tube.

“But given the legislation, it wasn’t a case that we felt like we could take on and successfully pursue,” Cain added.

At the height of the pandemic, dozens of other states passed legislation or executive orders granting liability protections to health care providers.

Some, like North Carolina’s, will continue as long as jurisdictions remain under a state of emergency due to the pandemic. The governor of that state extended immunity for health facilities as recently as last month.

But many, including the Sunshine State’s, were slated to expire within a year after going into effect.

At least 10 jurisdictions have since withdrawn such immunity for health care providers, and several more are due to lapse later this year.

In states like Georgia, Tennessee and Ohio, industry groups are fighting to get liability protections renewed amid waning political interest. Ohio’s law has already expired.

A federal state of emergency related to the pandemic is still in effect. However, a bill that would have quashed coronavirus lawsuits against health care providers nationwide failed to pass in Congress.