February 2021 – Florida Justice Reform Institute

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

February 18, 2021/in The Center Square Florida

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

lorida 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.”

https://www.thecentersquare.com/florida/florida-lawmakers-pacing-other-states-in-covid-19-liability-bills-and-their-session-hasn-t/article_c3550066-7221-11eb-9272-d36e08bf136f.html

House panel gives health care liability protections its first OK

February 18, 2021/in Florida Politics

House panel gives health care liability protections its first OK

After nearly two hours of discussion, four Democrats voted with Republicans.

By Renzo Downey on February 18, 2021

A bill to grant liability protections to health care providers is on its way through the committee process after nearly two hours of discussion during its first hearing.

The proposed committee bill (PBC HHS 21-01) would help shield nursing homes, hospitals and physicians from coronavirus-related lawsuits that make a “good faith effort” to protect patients. The House Health and Human Services Committee, where the bill originated, advanced it on a 17-3 vote, with three Democrats breaking ranks.

The proposal is part two of the House’s liability protections plan. The first bill (HB 7) — granting protections to most businesses, nonprofits, schools and religious institutions — is ready for a vote on the House floor when Session begins in March.

Rep. Colleen Burton, the Health and Human Services Committee Chair, told her committee the bill would protect health care providers from frivolous lawsuits while giving victims of negligent behavior an avenue to seek restitution. Keeping safe and following changing guidelines is daunting for the public, and more so for health care providers, the Lakeland Republican added.

“These health care 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 bill protects health care providers if a jury finds that they made a “good faith effort” to protect patients. It also increases the liability standard from negligence to gross negligence and the standard of proof from a preponderance of evidence to clear and convincing.

A one-year statute of limitations and a one-year sunset are an effort to constrain the “extraordinary protections” to issues arising only from the pandemic.

“Hopefully the pandemic will be over within the next year,” Burton said. “But if not, we have the opportunity to reenact the act prior to its repeal.”

The liability protections are also retroactive to the start of the pandemic, which elicited concerns from Tallahassee Democratic Rep. Allison Tant. She feared passing the bill could impede pending court cases against an intermediate care facility in her hometown that she said was responsible for 72 COVID-19 deaths, leading to her no vote

“Is all that just going to get washed away under this bill?” Tant asked.

The bill does not address delayed COVID-19 diagnoses, as Tampa Republican Rep. Traci Koster asked, but Burton implied that she would be open to amendments to include those.

Lawmakers heard the thoughts of health care providers, personal injury lawyers, union representatives and more during a lengthy public testimony segment.

LeadingAge Florida president Steve Bahmer, whose organization represents more than 500 facilities and more than 140 business associates that are home to more than 80,000 seniors, emphasized the changing directives health care providers had to meet often while lacking PPE.

“It doesn’t matter if you’ve had historical issues with infection control violations. The primary predictor of coronavirus getting into a longterm care community was community spread,” Bahmer said. “If it was spreading in your town, it was likely to get into your longterm care community.”

The Florida Justice Association, a group that represents trial attorneys, and the Florida AFL-CIO opposed the measure. AFL-CIO lobbyist Rich Templin said the bill does nothing to protect health care workers who the Legislature has championed as heroes.

“This bill isn’t for them,” Templin said.

Barbara DeVane, with the Florida National Organization for Women, alluded to Templin’s remarks, and said the bill protects facility owners’ profit margins.

When committee Vice Chair Michael Grant, the Port Charlotte Republican that was moderating the discussion, asked DeVane to wrap her comments to get to the next speaker, she expressed her frustration with the process.

“We’ve had a lot of presenters on the other side, and only a few of the side of the residents,” DeVane said.

St. Petersburg Rep. Michele Rayner, a civil rights attorney and one of the Democrats who opposed the bill, said she doesn’t believe the legislation is designed to protect corporations. However, she said she is still concerned about the increased standards placed on plaintiffs and juries.

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

William Large, president of the Florida Justice Reform Institute, told the committee that there are 53 court cases related to COVID-19, nine of which are against health care providers. Still, he suspects that number could be much higher because it is impossible to search notices of intent.

That drew concerns from Jacksonville Democratic Rep. Tracie Davis, who emphasized the fact that the state is writing legislation pertaining to an unknown number of cases.

Four of the seven Democrats on the committee supported introducing the proposal as a bill, based on Burton’s assurances that she will keep an open door and work with lawmakers who have concerns.

“It’s a complicated issue, and it’s an emotional issue, and it’s only a six-page bill,” Burton, said before Wednesday’s vote.

Rep. Christopher Benjamin, an attorney from Miami Gardens, was one of the Democrats who voted in favor of the bill. After the meeting, he cited Burton’s commitment to continue to work with members.

“What people like to do in this process is hope that as it travels through the committee process that they will allow improvements,” Benjamin told the News Service of Florida. “So we let it go forward so maybe in the next committee … they will tag on an amendment or two because they listened between meetings to what the people were saying. If that doesn’t happen, my yes vote may become a no vote.”

The Senate has introduced a bill (SB 74), carried by St. Petersburg Republican Sen. Jeff Brandes, to provide immunity to health care providers, but the bill is not identical to the House proposal. That bill was temporarily postponed in its first committee earlier this week after the Senate Judiciary Committee ran out of time to discuss it.

https://floridapolitics.com/archives/404638-house-panel-gives-health-care-liability-protections-its-first-ok

Trucking Takes On Lawsuit Abuse in Florida

February 17, 2021/in Transport Topics

Eric Miller | Senior Reporter | February 17, 2021

Trucking Takes On Lawsuit Abuse in Florida

traveler1116/Getty Images

For years, Florida owned a spot on the American Tort Reform Foundation’s “Judicial Hellholes” list for its reputation for being a place where judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants.

That could soon be changing as the Florida Trucking Association and its business allies take on lawsuit abuse in the state’s courts, and with the state Legislature, where the climate for change seems to be improving, according to the ATRF.

As recently as 2017, Florida was No. 1 on the group’s infamous list. Today its legal climate has improved, and the state has been downgraded to the group’s “watch list.”

Armstrong

The winds of change blew strong earlier this year when the association and its allies got credit for playing a role in urging the Florida Supreme Court to bring the state’s summary judgment law in line with federal standards and most other states in the U.S.

The influential case that Florida’s high court used to change the law involved a trucking accident lawsuit that a state appellate court declined to dismiss, despite compelling truck dashcam video evidence that indicated the truck driver was not at fault.

A little over a year ago, the association and the Florida Justice Reform Institute filed a joint amicus curiae brief with the Supreme Court, asking it to bring the antiquated summary judgment rule up to date.

“That decision was a big one for us,” said Ken Armstrong, president of the Florida Trucking Association. “For decades, our Supreme Court took a different view of when summary judgment should be granted than most of the rest of the country — the federal standard and 38 other states.”

A summary judgment is a judgment entered by a court for one party against another party without a full trial.

Pianka

“Florida had a much more open-ended standard that basically resulted in stuff going to trial even when there was not the requisite genuine dispute,” said Richard Pianka, deputy general counsel for American Trucking Associations. “The new ruling brings the standard for summary judgment into line with where the vast majority of courts have been, and should make the system more fair.”

“Other states had a system by which if you are the defendant, and after going through the discovery process, you present a petition to the court saying this case has no merit, and here are the reasons why they are valid,” Armstrong said. “Then the burden of proof shifts back to the plaintiff to prove why the court should not dismiss the case. Florida’s law was not that.”

In January, the state trucking association held a closed-door lawsuit abuse forum for guidance from some of its members on how to spur reform in the courts and seek legislation to rid the court system of unfair rules and processes.

The group also is teaming with other reform and business groups to change a variety of unfair state laws and court procedures when the Legislature comes back in session in March. They include legislation giving motor carriers and the business community protection from liability from COVID-19 employee lawsuits, and protecting trucking defendants from inflated victim medical damages from plaintiff lawyers in trucking accident lawsuits.

The association also is supporting legislation that would stop plaintiff attorneys from frequently abusing a contingency fee multiplier process, and disallowing litigation financing that assists plaintiff attorneys in their costs prosecuting civil litigation against truckers.

The state high court’s Dec. 30 summary judgment ruling came after an appeal of a state appellate court that ruled that state law did not allow video evidence to support a summary judgment, reversing the trial court’s grant of a summary judgment.

“Florida had a much more open-ended standard that basically resulted in stuff going to trial even when there was not the requisite genuine dispute,” said Richard Pianka, deputy general counsel for American Trucking Associations. “The new ruling brings the standard for summary judgment into line with where the vast majority of courts have been, and should make the system more fair.”

“Other states had a system by which if you are the defendant, and after going through the discovery process, you present a petition to the court saying this case has no merit, and here are the reasons why they are valid,” Armstrong said. “Then the burden of proof shifts back to the plaintiff to prove why the court should not dismiss the case. Florida’s law was not that.”

In January, the state trucking association held a closed-door lawsuit abuse forum for guidance from some of its members on how to spur reform in the courts and seek legislation to rid the court system of unfair rules and processes.

The group also is teaming with other reform and business groups to change a variety of unfair state laws and court procedures when the Legislature comes back in session in March. They include legislation giving motor carriers and the business community protection from liability from COVID-19 employee lawsuits, and protecting trucking defendants from inflated victim medical damages from plaintiff lawyers in trucking accident lawsuits.

The association also is supporting legislation that would stop plaintiff attorneys from frequently abusing a contingency fee multiplier process, and disallowing litigation financing that assists plaintiff attorneys in their costs prosecuting civil litigation against truckers.

The state high court’s Dec. 30 summary judgment ruling came after an appeal of a state appellate court that ruled that state law did not allow video evidence to support a summary judgment, reversing the trial court’s grant of a summary judgment.

“Over the years that good motive has been warped on almost every case with the plaintiff attorney asking for the multiplier fee — and the court is awarding it just willy-nilly in spite of what was originally intended, which is extraordinary circumstances,” Armstrong said.

“We are having a huge number of capital venture firms jumping into the legal space to fund lawsuits basically on the gamble that the plaintiff will win,” he added. “If you are a capital venture firm that finances lawsuits by lending money to a plaintiff attorney to carry the lawsuit forward, the rate of interest can be as high as 40% a year.”

Armstrong noted that because cases can take at least a year or two to be resolved, the amount of money tied up in interest can give the financier a say in how the cases get litigated. “It decreases the likelihood that a case is going to be settled, thereby increasing the chance that it’s going to a jury trial,” he said.

Armstrong said he’s confident the group’s legislative efforts will be passed into law, and that the Supreme Court has become “rebalanced” in recent years, more attentive to businesses.

“I think we’ve got a very good chance,” he said. “But there’s obviously opposition to this. Florida has a lot of plaintiffs attorneys, and it’s not an easy process to get legislation passed, signed by the governor and then not overruled by the courts. But if there’s ever a time when we are going to curb lawsuit abuse, this is the time.”

There is another factor that could help the association’s fight for reform, he said.

In a poll conducted for FTA by Mason-Dixon Polling & Research Inc. last summer, the state’s residents’ approval rate for truckers rose to 87% from a prior poll giving truckers a 57% approval rate, according to Armstrong.

The poll, taken at the height of the pandemic, says a lot about the hard work of truckers in getting much-needed goods to destinations such as grocery stores and online retail customers, he said.

“We’re in a very strong position now with the public and with consumers, businesses and legislators,” Armstrong said.

https://www.ttnews.com/articles/trucking-takes-lawsuit-abuse-florida

Republican lawmaker’s bill would protect Florida abortion clinics from COVID liability

February 16, 2021/in Miami Herald

Republican lawmaker’s bill would protect Florida abortion clinics from COVID liability

BY KIRBY WILSON
FEBRUARY 16, 2021 06:00 AM,

UPDATED FEBRUARY 16, 2021 03:26 PM

Republican Florida Sen. Jeff Brandes FILE PHOTO

Republican lawmakers don’t typically like to say abortion services are health care. In fact, in 2020, Republican U.S. Sens. Marco Rubio and Rick Scott were co-sponsors of the “Abortion Is Not Health Care Act.”

But a new bill making its way through the Florida Legislature, Senate Bill 74, would provide greater liability protection to health care providers in COVID-19 related lawsuits, including abortion clinics. Sen. Jeff Brandes, R-St. Petersburg, the author of the bill, said this is not a political statement: Clinics are regulated by the state under the same statute as other health care centers.

Some abortion rights advocates are noting the irony of Republican-led legislation apparently admitting what they have long contended.

“We do believe that abortion rights are health care rights,” said Barbara DeVane of the Florida chapter of the National Organization for Women at a news conference Monday. “What a bunch of hypocrites in the Capitol, the Republican legislators that say they are anti-abortion, and yet these clinics are on the list.”

The GOP is indeed strongly anti-abortion. The state Legislature last year passed a bill requiring a doctor to get parental consent before terminating the pregnancy of a minor. Despite the objections of abortion rights advocates, Gov. Ron DeSantis signed that bill — one of his top legislative priorities — into law.

So it’s noteworthy that one of Republican leaders’ signature pieces of legislation in 2021 would ensure that abortion clinics are protected from frivolous COVID-19 related lawsuits.

Brandes downplayed the role of abortion clinics in the bill. The senator noted that even if the clinics weren’t listed as health care providers, they would be covered under another bill Brandes is proposing, SB 72. That legislation would give other businesses additional legal protection from COVID-19 related liability.

“It’s just where they fell in the statute,” Brandes said of abortion providers.

There hasn’t been any talk among Republicans about removing abortion clinics’ liability protections from the bill, Brandes added. The bill cleared its first Senate committee last week after nearly two hours of discussion and a party-line vote.

When asked about the protections for abortion clinics at a news conference Monday, DeSantis said he hadn’t seen the bill. House Speaker Chris Sprowls, R-Palm Harbor, referred the question back to Brandes.

“Abortion is health care and it absolutely should be included in any effort by the Legislature to define who are the front-line health care workers,” said Rep. Anna Eskamani, D-Orlando. Until 2018, Eskamani was the senior director for Planned Parenthood of Southwest and Central Florida.

Thirty-four states have enacted liability protections for businesses or health care providers, according to the American Tort Reform Association, which supports such protections.

Attorney William Large, the president of the Florida Justice Reform Institute, found that at least nine COVID-19 related lawsuits have already been filed against health care providers in Florida. None of those lawsuits involved abortion providers. (If it becomes law, SB 74 would apply retroactively. However, companies that are sued before the bill is signed into law would not have additional legal protection.)

Opponents of Brandes’ bill have argued that with so few documented lawsuits against health care providers, the extra liability protections are at best unnecessary. At worst, they shield abusive actors that showed little regard for people’s safety during a pandemic.

“The same government that gave little to no direction, that forced the economic reopening of the state outside the (Centers for Disease Control and Prevention) guidelines, is asking for a blank check for business owners,” said Rich Templin, the public policy director for the Florida AFL-CIO.

However, Large, who leads an organization backed by the pro-business Florida Chamber of Commerce, said in an interview that his list of lawsuits is far from comprehensive.

“There’s not like a centralized database that you could Google to say, ‘Hey, spit out all the COVID-19 lawsuits,’ ” Large said.

It remains to be seen whether health care providers will face a rash of lawsuits. But if those lawsuits come and Brandes’ bill as written is signed into law, abortion providers would be covered.

That fact alone isn’t swaying many of the state’s progressive lawmakers.

“I have concerns about the liability legislation as a whole, no matter who’s listed,” Eskamani said.

Contact Kirby Wilson at [email protected]. Follow @kirbywtweets

https://www.miamiherald.com/news/politics-government/article249272930.html

Abortion clinics are health care providers, Florida liability bill says

February 16, 2021/in Tampa Bay Times

Abortion clinics are health care providers, Florida liability bill says

The bill’s author notes that abortion clinics are regulated as health providers by the state. But some abortion rights advocates are noting the irony of the Republican-backed legislation.

Abortion rally

Joey Cousin, a transgender student from Broward county and an opponent of the SB 404,
known as the “parental consent” bill, speaks at a press conference at the Capitol on Jan. 22, 2020,

in Tallahassee. [ AILEEN PERILLA | AP ]

By Kirby Wilson – Published Feb. 16, 2021

TALLAHASSEE — Republican lawmakers don’t typically like to say abortion services are health care. In fact, in 2020, Republican U.S. Sens. Marco Rubio and Rick Scott were co-sponsors of the “Abortion Is Not Health Care Act.”

But a new bill making its way through the Florida Legislature, Senate Bill 74, would provide greater liability protection to health care providers in COVID-19 related lawsuits, including abortion clinics. Sen. Jeff Brandes, R-St. Petersburg, the author of the bill, said this is not a political statement: clinics are regulated by the state under the same statute as other health care centers.