Brandes bill shielding business from coronavirus suits gets backing in Senate

The St. Petersburg senator says employers struggling to remain in operation are at risk of getting sued, but a Senate staff analysis said only six lawsuits have been filed.

Many health-related businesses have been removed from protections against coronavirus suits in a bill working its way through the state Senate. [ Photo illustration by ASHLEY DYE and SCOTT KEELER | Times ]

By News Service of Florida – Published Jan. 26

TALLAHASSEE — The Senate Judiciary Committee on Monday approved a proposal that would give Florida businesses that “substantially” comply with public-health guidelines broad protection from coronavirus-related lawsuits filed by customers and employees.

The bill (SB 72) would not apply to health-care providers such as hospitals, nursing homes and physicians, who have been clamoring for protections since spring. Instead, the bill would help shield other types of businesses and educational and religious institutions from claims for damages, injuries or deaths.

The Republican-controlled committee spent more than two hours debating the bill and four amendments offered by Democrats before voting 7-4 along party lines to move it to the Senate Commerce and Tourism Committee.

“I promise all my bills will not be like this. I promise that we will work together in most of our legislation in a much more, I believe, collaborative way to address this,” said Judiciary Chairman Jeff Brandes, a St. Petersburg Republican who is sponsoring the bill.

Without the legislation, Brandes said businesses could face lawsuits if they did not “wholly” comply with the various public-health orders issued at the state, local and federal levels.

“They would have been subject to lawsuits that could have put them under. Not only businesses but homeowners against homeowners, parishioners against pastors, and I think that’s what this legislation does,” Brandes said. “It says, ‘Look, we need to create a safe harbor for those businesses that substantially complied with the guidelines.’”

The proposal’s supporters contend employers that have been struggling to remain in operation during the pandemic are at risk of getting sued. But a Senate staff analysis said only six lawsuits have been filed.

Florida Justice Reform Institute President William Large, however, said his research indicates that 53 lawsuits have been filed across the state. Large said litigation has been filed against nursing homes and cruise lines, neither of which would be protected under the bill.

Large asked senators to ensure that they consider similar legislation to protect health-care providers.

“Sometime in the future, make sure our health-care providers are included in a bill that substantially looks like this,” said Large, whose business-backed group lobbies on a wide range of issues related to limiting lawsuits.

Brandes’ bill would require plaintiffs to file claims within one year after incidents. They would be required to obtain affidavits from Florida physicians attesting that the defendants’ acts or omissions caused the damages, injuries or deaths.

Businesses that courts deem have “substantially” complied with government-issued health standards or guidance would be immune from liability. The bills also would make it harder to win lawsuits, raising the bar of proof from simple negligence to gross negligence and upping evidentiary standards from the current “greater weight of the evidence” to “clear and convincing evidence.”

Democrats on the committee proposed amendments that were defeated or withdrawn. For example, Sen. Tina Polsky, a Boca Raton Democrat who is an attorney, filed an amendment that would have required a “qualified medical expert” to sign an affidavit that a plaintiff was positive for COVID-19 at the time the cause of action accrued and that the plaintiff’s infection resulted in injury, damages, or death.

Polsky’s amendment would have deleted the provision in the bill that would require physician affidavits. In offering her amendment, Polsky said a physician would not be qualified to determine whether a business’ actions caused the COVID-19 infection.

The Republican-led Legislature unveiled the Senate bill and its House counterpart (HB 7) this month. The bills are identical, and House and Senate leaders have thrown their support behind the proposals. The House bill cleared its first subcommittee last week in a party-line vote.

Lawmakers are considering the proposals as the numbers of COVID-19 cases and deaths have surged in Florida during the fall and winter. As of Monday, 1,658,169 cases of COVID-19 and 25,446 resident deaths had been reported in Florida since the pandemic hit.

Bill Herrle, executive director of the small-business group NFIB Florida, said businesses are keenly aware the liability proposal is moving through the Legislature.

“I can assure you that business owners are very aware that you are addressing this issue; that  you are debating it today,” Herrle said. “And the thing they like about it the most is it’s being done today here at the very outset of the legislative session.”

But Sen. Perry Thurston, a Fort Lauderdale Democrat who is an attorney, said he didn’t think liability protection was the most important COVID-19-related issue for the Legislature to tackle first as it prepares for the March 2 start of the annual session.

“Blanket immunity that we have here is not what I think should be our first line of attack on this virus that has plagued our community,” Thurston said, adding that he gets calls about food insecurity and evictions and job loss. “One of the speakers talked about the fact that this is the first item of business for the Florida Legislature. I think it’s something that we should be addressing. But when I have to go back to my community and talk about people being evicted, people having food insecurities, life or death issues, I think it’s a sad reflection on the state that this is what we choose to address first as it relates to this virus.”

– Christine Sexton

https://www.tampabay.com/news/health/2021/01/26/brandes-bill-shielding-business-from-coronavirus-suits-gets-backing-in-senate/ 

Florida lawmakers respond to COVID-19 with … tort reform
Even the Republican sponsor of the bill that would limit lawsuits admitted there were “fewer than 10” lawsuits that have been filed in Florida with claims related to COVID-19.

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.

Times/Herald Tallahassee Bureau reporter Lawrence Mower contributed to this report.

https://www.tampabay.com/news/florida-politics/2021/01/14/florida-lawmakers-respond-to-covid-19-with-tort-reform/