March 2021 – Florida Justice Reform Institute

Fla. Gov. Signs Sweeping COVID-19 Liability Protection Law

March 29, 2021/in Law360

Fla. Gov. Signs Sweeping COVID-19 Liability Protection Law

By Nathan Hale

Law360 (March 29, 2021, 10:15 PM EDT) — Florida on Monday became the most populous state to date to enact legislation shielding businesses and health care providers from COVID-19 injury and death lawsuits, with the law drawing mostly praise from the state’s legal community as needed to support a post-pandemic economic recovery despite controversy over certain provisions.

The legislation had drawn opposition from various groups, including the state’s plaintiffs bar, unions and the AARP, plus Democratic lawmakers. But it was a top priority for Republicans, who control the Sunshine State’s executive and legislative branches, and pushed the proposal through substantially in its original form and largely along party lines.

Gov. Ron DeSantis signed S.B. 72 the same day he received it from the Legislature. He was flanked at a press conference in Tallahassee by fellow Republican legislative leaders and the state’s chief financial officer, who had toured Florida for months pushing the measure, as well as a local rock band that was invited to represent the kind of businesses that have been limited by liability concerns from COVID-19, according to the governor’s office.

“Over the course of the past year, our state’s businesses, health care providers and other organizations have been forced to operate in fear of frivolous lawsuits with no merit threatening their livelihoods,” DeSantis said, applauding the legislation’s quick passage. “As we move forward in our state’s economic recovery, this good piece of legislation will provide Floridians with greater peace of mind as they go to work, go to school, and go about their daily lives.”

The House passed S.B. 72 on Friday in an 83-31 vote largely split along party lines. The measure gives civil immunity to corporations, hospitals, nursing homes, government entities, schools and churches, among others, as long as the alleged negligence doesn’t involve gross negligence or intentional misconduct.

The lower chamber passed the bill one week after it was advanced by the state Senate, which combined two bills that had separately addressed COVID-19 liability protections for businesses and health care providers.

The new law erects significant legal hurdles for individuals who want to sue over coronavirus-related injuries. Plaintiffs who file suit will need to provide a physician’s affidavit of merit essentially vouching for an injury claim. They will also need to establish in court that a defendant did not make a good faith effort to comply with public health standards and to prove that a defendant committed gross negligence under a “clear and convincing” evidentiary standard.

The law establishes a one-year limitation period to sue from the later of the date of death, hospitalization or COVID-19 diagnosis that forms the basis of the claim. It applies to claims that accrued before the enactment of the law and within one year following the governor’s signing of it, but it does not apply to lawsuits that have already been filed.

William Large, executive director of the Florida Justice Reform Institute, a tort reform advocacy group backed by the Florida Chamber of Commerce, praised the Legislature “for clearing the dark clouds of COVID-19 liability hanging over Florida’s employers and medical providers, who should be focused on helping people get well and back to work, and not worrying about being sued.”

“Today is a great day for businesses and health care providers in Florida,” Beth A. Vecchioli, a senior policy advisor with Holland & Knight LLP, told Law360. “With the governor’s signing of Senate Bill 72, they no longer have to be worried about fighting frivolous lawsuits from plaintiffs alleging they contracted COVID-19 at their place of business.

Fred E. Karlinsky, co-chair of Greenberg Traurig LLP’s insurance regulatory and transactions practice group, said he thinks the legislation is an important step in making sure Florida is a leader among states in taking steps to protect businesses and help its economy and residents move in the right direction.

“This should serve to reduce potential litigation, which could have the effect of slowing down our recovery,” he said. “The governor, CFO and the legislature should all be commended for their hard work during this very challenging legislative session and time.”

Dean Cannon, president and CEO of GrayRobinson PA and a former Florida House speaker, said the legislation, which became effective immediately upon the governor’s signature, represents decisive action that will help on a number of fronts.

“Florida’s businesses and health care providers will immediately have the confidence to continue to operate without the fear of being slapped with a COVID-related lawsuit that doesn’t provide clear and convincing evidence,” he said. “At the same time, our court system will benefit from these reforms, as it will keep those who may be acting in bad faith at bay.

But Paul Jess, executive director of the Florida Justice Association, the state’s plaintiffs bar, said the courts already are “perfectly equipped” to weed out lawsuits that lack merit.

“Florida has laws, rules and regulations in force to discourage bad actors and deter health care corporations from being lax in their protocols and training,” he told Law360. “That is the whole point of our civil justice system — to encourage safe conduct, to deter unsafe practices and to hold wrongdoers accountable. This new law does the opposite and gives negligent businesses and health care facilities a free pass.”

Jess said the new law protects corporate profits but does nothing to protect employees, customers and front line workers who have sacrificed to keep communities safe and the economy open.

There were also some words of caution among supporters of enacting liability protections.

Angela de Cespedes, a litigator with Saul Ewing Arnstein & Lehr LLP whose practice includes the defense of a wide range of businesses in injury and wrongful death cases, told Law360 this is the most comprehensive liability shield law passed to date in the U.S. and a win for those it is intended to protect, but she cautioned that attention must be paid to amend it where necessary to avoid unintended consequences or loopholes.

“Concerns remain with respect to how the process for making the evidentiary determinations required to successfully dismiss these actions will play out as far as time, fee and cost investments by defendant businesses are concerned,” she said. “I suspect that the current requirements, including the physician affidavit necessary to file these suits, will have to be beefed up at some point so they more closely resemble that required in medical malpractice suits in order to achieve the desired results.”

De Cespedes said combining the business and health care bills was a positive step to achieve consistency in outcomes, and she said thinks the measure should have been written to cover existing lawsuits, which fall outside of the protection of the law.

–Additional reporting by Y. Peter Kang. Editing by Jill Coffey.

https://www.law360.com/articles/1369972/fla-gov-signs-sweeping-covid-19-liability-protection-law

Data privacy bill clears House committee with a slew of amendments

March 23, 2021/in Florida Politics

Kelly Hayes – March 23, 2021

The proposal would give consumers the right to control how their personal data is shared and sold.

A bill to enhance protection for internet users’ data cleared its second House panel Tuesday morning, accompanied by a bevy of amendments.

The legislation (HB 969), filed by Sarasota Republican Rep. Fiona McFarland, passed unanimously in the House Civil Justice and Property Rights Subcommittee. The proposal would give consumers the right to control how their personal data is shared and sold. That data helps businesses know more about individual consumers and helps direct targeted ads.

The bill would require businesses to publish a privacy policy and tell consumers, if asked, what data they have on them, how they got it, and how they use it. Consumers could ask to have that information deleted or corrected.

“This bold frontier has created a digital universe where a parallel but shapeless version of our identities exist,” McFarland said at the meeting. “And we believe that in Florida, our consumers ought to have a consistent expectation of how companies are handling that.”

The legislation faced a number of amendments at the committee hearing, ranging from technical corrections to content additions — and including one that drew criticism in public testimony. That amendment would allow a consumer to bring forward civil action against and receive relief from a business for continuing to sell, share or keep personal information after opting out.

The amendment would add the option of civil action in addition to the bill’s existing enforcement through the Attorney General, who would be given the power to enforce intentional and unintentional violations of the bill. It would allow between $100 and $750 in damages to be collected by a consumer per incident. If successful, the consumer could recover attorney’s fees and court costs.

Critics expressed concern the provision would lead to extraneous litigation and attorney fees for an ultimately small payout. Several commenters compared the amendment to Florida’s Personal Injury Protection (PIP) law.

“The problem with PIP is you see litigation over low dollar amounts that lead to big fees,” said William Large, president of the Florida Justice Reform Institute. “This bill has so many pitfalls that if you add the attorney’s fee piece to it, it’s going to be a litigation magnet like PIP and like workers compensation.”

Several members of the committee, including Republican Rep. Tom Gregory and Democrat Reps. Yvonne Hinson and Ben Diamond, echoed that apprehension.

“I totally support the goal of this bill, of providing additional protections for consumer privacy and personal information. I think the enforcement piece is the hard piece to sort,” Diamond said.

While the amendment was approved, the members made clear they would like to come back to it. Other amendments added at the meeting clarify exceptions for medical information, information related to consumer reports and for transactional uses of information for credit card purchases. It also added an exemption for first party advertising.

Another amendment adds a provision requiring a business that collects a consumer’s personal information to implement and maintain reasonable security procedures and practices.

“I do not pretend this is a small bill, and am well-aware of the broad reaching consequences, and have worked to balanced feedback from industry and with the bill’s previous committee stop,” McFarland said. “Much of that feedback, and the conversations we’ve had at the bill’s first stop is reflected in the fact that I’m bringing seven amendments today.”

McFarland did receive praise from across the aisle for the bill, including from Orlando Democrat Rep. Anna Eskamani

“The fact that she had seven amendments today I think is an indication that her door is open,” Eskamani said of the bill’s sponsor. “She’s trying to walk the line of protecting consumer data and consumer privacy, while also ensuring that the implementation will be smooth and the rules will work.”

The data privacy proposal is a priority of Gov. Ron DeSantis and House Speaker Chris Sprowls, announced as part of their plans this Session to combat “Big Tech,” both in social media and on consumer privacy.

The bill would also add biometric data to the list of protected information. That builds off of Sprowls’ 2020 DNA privacy bill, which DeSantis signed into law last year, making Florida the first state to guarantee such privacy for customers’ life, disability and long-term care insurance.

“This bill establishes data security that is akin to merely locking the front door,” she said. “Let’s get to the place where ‘Chad’ in grandma’s basement is not getting access to our personal information, and expect a hardened, private sector cybersecurity standards that are at least locking the front doors and windows.”

The House bill passed through its previous committee unanimously, and is now onto its final hearing in the House Commerce Committee.

A Senate version of the bill (SB 1734), which is being carried by Fleming Island Republican Sen. Jennifer Bradley, passed through its first committee Monday.

https://floridapolitics.com/archives/414113-data-privacy-bill-clears-house-committee-with-a-slew-of-amendments

House Panel Approves ‘PIP’ Repeal, But Differences Remain

March 11, 2021/in Law.com

House Panel Approves ‘PIP’ Repeal, But Differences Remain

Rep. Erin Grall, who has sponsored the repeal effort for five years, said drivers with just PIP policies aren’t adequately covered under the system’s $10,000 coverage, which was set in 1979.

By Jim Turner | March 11, 2021 at 02:08 PM

Erin Grall

Rep. Erin Grall. Courtesy of Florida House of Representatives.

TALLAHASSEE — The Florida House and Senate will have to work out differences if they want to end Florida’s longstanding no-fault auto insurance system, while the state’s insurance commissioner remains hesitant on the repeal effort.

The House Civil Justice & Property Rights Subcommittee unanimously approved a bill Wednesday (HB 719) that would eliminate no-fault — and its requirement that motorists carry personal-injury protection, or PIP, coverage — and mandate bodily injury coverage.

Rep. Erin Grall, a Vero Beach Republican and attorney who has sponsored the repeal effort for five years, said drivers with just PIP policies aren’t adequately covered under the system’s $10,000 coverage, which was set in 1979.

“We are talking about putting in place something that would give potentially two-and-a-half times more coverage to people after they are in an accident at the fault of someone else,” Grall said. “I mean, this restores responsibility to our roadways.”

Grall added that the current system is a “predatory scheme of reimbursement rates,” and her proposal should eliminate the more than 60,000 litigated PIP claims annually.

But representatives of the insurance industry expressed concerns that the change could result in more litigation, shift health-care costs and force people now struggling to pay for just PIP coverage to go without insurance while on the road. The $10,000 in PIP coverage helps pay for health-care costs after motorists are injured in accidents.

“Even having health care coverage for some consumers might still leave consumers exposed in the event that they’re injured by an at-fault driver who doesn’t have insurance, which is very likely to happen,” Florida Insurance Commissioner David Altmaier said. “That’s going to probably increase litigation and things of that nature. It’s going to drive up costs for health insurance, as well as auto insurance and it’s going to exacerbate the current uninsured problem that we have in the state on both those fronts.”

Altmaier added that despite “fair criticisms” of PIP and auto insurance in general, he remains “hesitant” on the repeal.

“We are not convinced that those issues will be solved if we repeal PIP and go to a mandatory BI (Bodily Injury) framework,” Altmaier said.

As with a Senate proposal (SB 54), the House measure would end the requirement of carrying $10,000 in PIP coverage on Jan. 1, set minimum bodily injury coverage at $25,000 for the injury or death of one person and $50,000 for injuries or deaths of two or more people. The proposals also would require auto insurers to offer at least $5,000 in what is known as medical payments coverage, though motorists would not be required to buy it.

The Senate proposal, which has passed two committees and will go before the Rules Committee on Thursday, also would offer lower bodily injury coverage requirements for students and low-income motorists. They would be required to carry $15,000 in coverage for a single injury or death and $30,000 for two or more victims.

But perhaps the biggest difference in the bills is a Senate proposal to address “bad faith” lawsuits, which involve allegations that insurers have not properly looked out for the interests of their customers. Insurers and business groups have long lobbied to curb bad-faith cases, which can be costly for insurers. Such changes have been opposed by plaintiffs’ attorneys.

The House bill does not address bad faith, with Grall reluctant to include it. The issue has been a thorn as the House and Senate have considered measures in the past to repeal the no-fault system.

Julius Parker, representing the Florida Justice Reform Institute, a business-backed lobbying and legal group, said the bad-faith system in Florida is broken and needs the Senate changes, “which would provide some protections to an insurer. Specifically, notice of a claim, a clear opportunity to settle the claim, and a clear time period in which to investigate the claim and decide whether or not to pay it.”

The bills also have spurred disagreements about the financial impacts to motorists if no-fault is repealed and potential cost shifts to the health care industry.

“We cannot support a wholesale change to the auto system without accurate data to show how these changes will affect Floridians across the whole socio-economic spectrum, that includes the lower rung, not just an average and where some of us might see a decrease,” said George Feijoo, a lobbyist for the Florida Insurance Council.

https://www.law.com/dailybusinessreview/2021/03/11/house-panel-approves-pip-repeal-but-differences-remain/

Florida Privacy Legislation Moves Forward

March 11, 2021/in JD Supra

March 11, 2021

Florida Privacy Legislation Moves Forward

HB 969, a comprehensive privacy law that would immediately become the most onerous in the United States, sailed through the Florida House of Representatives’ Regulatory Reform Subcommittee yesterday.

Before diving deeper into the House subcommittee hearing, it should be noted that the Florida Senate is now considering SB 1734 (the “Florida Consumer Protection Act”) that would create a similarly sweeping privacy law but go one step further in allowing for a private right of action for any violation of the privacy obligations in addition to data breaches. The potential litigation risks to companies doing business in Florida created by this bill are enormous.

Back to the House subcommittee hearing. The subcommittee hearing began with consideration and unanimous approval of five amendments that incorporated minor changes and fixed drafting errors. Representative Fiona McFarland then provided an opening statement. She was knowledgeable about her 38-page bill, demonstrated effective use of her military background, and was highly likeable. Throughout the more than one-hour hearing, Rep. McFarland struck the right tone – expressing an eagerness to pass the law but open to changes. She is, without question, someone to watch in Florida politics, and if this bill becomes law it will in large part be because of its effective sponsor.

The hearing then moved to questions from the 18 subcommittee members. Examples of the discussion include:

Representative Giallombardo (R) mentioned his background in technology and asked about compliance costs. Later in the hearing he stated that it is “not difficult to be in compliance [with HB 969] these days” because companies that collect personal information are likely already in compliance with other similar laws and standards (like the Payment Card Industry’s Data Security Standards), so the cost should be minimal. Representative McFarland deftly avoided providing a price tag, arguing that if a company chooses to collect personal information of a Florida resident, the price tag is somewhat irrelevant. (As discussed in a previous post, the bill would require companies to incur potentially hundreds of thousands of dollars to perform a data inventory, establish a data subject request process, prepare policies and procedures, perform a third-party cybersecurity risk assessment, and engage legal counsel to understand the law’s application and negotiate new contract requirements. Additionally, most small and mid-sized companies use third-party payment processors to shift the PCI DSS burdens Rep. Giallombardo referenced.)

Representative Dan Daley (D) mentioned his own experience counseling clients with GDPR enforcement and expressed “a lot of heartburn” over the private cause of action. He (like all other members) nevertheless voted for the bill to pass the subcommittee.

Representative Eskamani (D) expressed concern that the law was not aggressive enough and floated a softball to Rep. McFarland for examples of how businesses are using data to make money. McFarland responded with an example of how an angry father learned his daughter was pregnant when a department store targeted her with baby product advertisements. (The veracity of this story, which has become lore for privacy advocates, has recently been challenged here and here.)

Representative Sirois (R) expressed concern that the law required companies to delete personal information faster than necessary. Rep. McFarland conceded that this was an area of the bill that continues to be explored for further changes.

Representative Harding (R) asked about loopholes we have learned from other state privacy laws. Rep. McFarland noted that other state laws create exemptions for entire industries and conceded that HB 969 required more work on identifying appropriate exemptions.

Representative Gregory (R) suggested that the Florida Attorney General’s Office (rather than private class action lawsuits) may be the better way to address the underlying concerns of data breaches. Rep. McFarland conceded a few times throughout the hearing that the private right of action is the part of the law that has come under the greatest criticism from the general public.

Representative Overdorf (R) asked how many businesses Rep. McFarland believed would have to comply with this bill in light of the fact many may already be in compliance with other similar laws. McFarland did not know or hazard a guess.

Representative Robinson (R) wanted to learn where HB 969’s scope requirements originated. McFarland stated that the scope matches that of California’s law. Rep. Robinson pointed out that costs of implementation will surely be passed on to consumers, almost as a tax. Rep. McFarland conceded that they likely would and that “consumers are OK with that.” Rep. McFarland also said she was open to extending the January 1, 2022 compliance deadline.

The subcommittee then took comment from the public. Perhaps the most effective argument was by William Large of the Florida Justice Reform Institute, who made two strong points previously made in this previous blog post. First, Mr. Large expressed concern that the expansive definition of personal information will create a massive windfall for lawyers (particularly the plaintiff’s bar). He provided the example of a cyberattack resulting in the disclosure of something minor about one-million Florida residents (like their preference for a certain toothpaste). HB 969 would allow for a class action lawsuit based on such an incident resulting in damages of $750,000,000 and millions of dollars more in attorney’s fees. Mr. Large also expressed concern that the private right of action would create an incentive in “gray area” data security incidents (where a breach of personal information is not clear) to not notify impacted individuals out of fear of large class action lawsuits. Rep. McFarland did not address the “gray area” incentive not to notify and seemed to support the large class action lawsuit on the ground that learning one’s toothpaste preference would be an invasion of their private home.

Another fairly persuasive public commenter was a representative from Associated Industries of Florida who argued that HB 969 would effectively constitute a tax on small businesses, with an estimated implementation cost of $55 million.

The other public commenters were less effective. A representative from the Florida Bankers Association requested a limited exemption for entities governed by the GLBA, similar to the exemption in the CCPA. A representative from the Florida Retail Federation expressed a general concern about the private cause of action and short implementation within approximately 15 seconds.

The subcommittee then debated the bill before all 18 members voted unanimously to pass the bill out of subcommittee. The bill will now move to another subcommittee for further consideration while Rep. McFarland considers additional amendments. If you’d like to watch the entire one hour and 10 minutes of the hearing, you can do so here.

My Personal Takeaway

With the Governor’s endorsement of HB 969, the Senate’s consideration of its “CCPA on Steroids” bill, and the way HB 969 sailed through subcommittee consideration (thanks in large part to its highly effective Republican sponsor), it will be interesting to see whether anything will slow down momentum for a comprehensive privacy law in Florida with a strong private right of action. Stay tuned . . .

https://www.jdsupra.com/legalnews/florida-privacy-legislation-moves-7284836/

Data privacy bill gets unanimous approval in first hearing

March 10, 2021/in Florida Politics

Renzo Downey – March 10, 2021

Gov. Ron DeSantis is backing the Big Tech accountability bill that is drawing comparisons to California.

Over opposition from business and legal groups, a House panel gave its unanimous approval to a bill to protect internet users’ data privacy.

That measure (HB 969), filed by Sarasota Republican Rep. Fiona McFarland, would give consumers the right to control how their personal data is shared and sold. That data helps businesses know more about individual consumers and help make things like targeted ads possible.

The proposal is a priority of Gov. Ron DeSantis and House Speaker Chris Sprowls, announced as part of their plans this Session to combat Big Tech, both in social media and on consumer privacy.

The social media half of that package has drawn opposition, mainly from Democrats. But McFarland attempted to distance her bill from that mostly partisan effort during the Wednesday House Regulatory Reform Subcommittee meeting.

“This bill is purely about a Florida consumer who through interacting with a for-profit business online hands over troves of personal, very intimate information about themselves that could reasonably be used to identify them,” McFarland said, “whether that be their name, address, phone number or things like their IP address or their browsing history or even that they’re classified as a 30-something, White, heterosexual female with a college degree.”

Committee members passed the measure out of its first committee stop by a unanimous vote.

The bill would require businesses to publish a privacy policy and tell consumers, if asked, what data they have on them, how they got it, and how they use it. Consumers could ask to have that information deleted or corrected.

Consumers could opt out of having their data sold or shared. Minors would have to opt in for data sharing.

The bill would add biometric data to the list of protected information. That builds off of Sprowls’ bill, which DeSantis signed into lawlast year, making Florida the first state to guarantee DNA privacy for customers’ life, disability, and long-term care insurance.

The Attorney General would have the power to enforce intentional and unintentional violations of the bill.

McFarland told the committee she enjoys targeted ads and finds them helpful. However, she highlighted one case of a minor who had not told her parents she was pregnant, but her household received baby formula through targeting.

“That is to me where it stops being useful and starts being very invasive when companies know us better than we and our family know one another,” she said.

McFarland told the committee she has worked with and continues to work with industry specialists both for and against her proposal. She is pulling ideas from Europe and states like California and Virginia and building off of them to create a “uniquely Floridian version.”

Businesses are concerned the strict regulations and January 2022 implementation date could overly burden Florida businesses. Even restaurants with mailing lists, as Merritt Island Republican Rep. Tyler Sirois mentioned.

The bill would touch every single Florida resident and business, committee Chair Rep. Bob Rommel cautioned.

McFarland said she was aware of the additional efforts businesses would have to take to maintain compliance and added she doesn’t want to halt innovation. But making it easier for businesses would be “giving up” on the rights of consumers.

The bill would also allow businesses to charge consumers for denying them information to compensate for missing out on selling personal data, if the businesses could prove those losses.

The Representative said some companies could decide to absorb the costs as the right thing to do and the cost of doing business. She conceded that some businesses would certainly shift costs to consumers, but many users would accept the additional fees.

“They are OK with understanding that if their data is better protected or more in their own control then perhaps that would be a handoff that they are willing to either pay slightly more for or have a different user experience,” McFarland said.

However, Cape Coral Republican Rep. Mike Giallombardo, a tech entrepreneur with experience in cybersecurity, didn’t foresee a huge cost for businesses. Many security and privacy mechanisms already exist, he told the committee.

“It is not that difficult to be in compliance these days with cloud services like Azure, AWS, Red Hat,” Giallombardo said. “A lot of times, the access control is the only thing that the business needs to really comply by.”

Among those in support of the measure were CFO Jimmy Patronis. In a statement after the committee, he thanked the Governor, Sprowls and McFarland for prioritizing holding Big Tech accountable.

“There’s nothing more valuable to a person than one’s own identity, and Big Tech has figured out a way to cash-in while leaving the consumer in the dark,” he said. “Floridians deserve to have their data protected and I’m proud to support House Bill 969, it’s good for Florida consumers, good for small businesses and most importantly, it’s the right thing to do.”

Florida Justice Reform Institute President William Large said the bill’s current definition of personal information is more expansive than California’s.

“If a group of hackers hack a business, and it gets out that I buy Crest toothpaste, normally that would be a big so what, but under the private cause of action’s penalties, and there’s a million people hacked, that could result in a potential class action worth $750 million, and that’s the problem with this bill,” he told the committee.

With comparisons to California, lawmakers’ perennial boogeyman, and its existing law, McFarland offered a defense of the Golden State’s business climate.

“The sky does not appear to have fallen in the state of California,” she said.

The bill next advances to the House Civil Justice & Property Rights Subcommittee. Fleming Island Republican Sen. Jennifer Bradley‘s version (SB 1734) has not been scheduled for its first hearing.

https://floridapolitics.com/archives/411001-data-privacy-bill-gets-unanimous-approval-in-first-hearing

SENATE COVID-19 LIABILITY SHIELD BILL MOVES AGAIN

March 5, 2021/in Florida Bar News

SENATE COVID-19 LIABILITY SHIELD BILL MOVES AGAIN

Mar 05, 2021 By Jim Ash Senior Editor

A COVID-19 liability shield for medical providers is continuing to advance in the Senate, despite warnings by critics that it would put some of Florida’s most vulnerable residents at risk.

The Health Policy Committee voted 5-4 on March 3 to approve SB 74 by Judiciary Chair Jeff Brandes, R-St. Petersburg.

When the nation’s supply of PPE quickly became exhausted, doctors, nurses, and hospital workers in Florida donned shower caps and garbage bags to continue treating patients, Brandes said.

Sen. Jeff Brandes

“They were there for us, they were there for our families, our communities, our neighbors, on the front end of this,” Brandes said. “We need to be here for them on the back end.”

But Democrats, trial attorneys, labor organizers, and consumer advocates argued that the bill would prevent injured patients and nursing home residents from pursuing legitimate claims.

Senate Democratic Leader Gary Farmer, a Ft. Lauderdale attorney, warned that the measure would send the wrong message to the small percentage of “bad actors” in the nursing home industry who put profits over patient safety.

“Ford didn’t build a safe Pinto until they started getting sued for building a Pinto that exploded,” Farmer said. “In this case, we’re talking about our most vulnerable citizens…veterans who stormed the beaches of Normandy.”

Farmer tried unsuccessfully to strip a provision of the bill that would grant immunity to providers if “supplies, materials, equipment, or personnel…were not readily available or were not available at reasonable cost.”

Farmer said medical providers could dismiss any claim simply by citing equipment or personnel shortages.

“When you talk about complete immunity for low staffing and inadequate PPE, there are so many considerations that come into play,” Farmer said. “We believe the jury should be able to consider the entire picture.”

But Brandes said the provision was central to his bill. He pointed out that Florida’s Division of Emergency Management couldn’t secure medical supplies at the height of the pandemic.

“If the head of the [Division] of Emergency Management can’t find masks, can’t find gowns, how in the world is a nursing home going to be able to find it?” Brandes said.

The amendment failed on a voice vote, as did a series of other Democratic amendments. One would have expanded the bill’s one-year statute of limitation to two years. Another would have exempted medical providers from the bill’s liability protection if they have been cited for infection control violations in the past three years.

Democrats also tried unsuccessfully to exempt elective surgical procedures from the liability protections, arguing that providers should know better than to schedule outpatient procedures if a nearby hospital is overrun with COVID patients and unable to provide emergency backup.

William Large, president of the Florida Justice Reform Institute, said 33 other states have attempted to enact some form of COVID-19 liability protections. Seventeen of those, Large said, adopted liability protections related to “COVID exposure.”

Critics of the bill also argue that a dearth of COVID-19-related liability suits a year into the pandemic proves that there is no need to create a liability shield.

But Orlando attorney Robin Khanal, who represents nursing homes, told the committee that his firm is currently handling 65 COVID-related cases, most of them in a pre-suit phase that follows the receipt of a notice of intent.

Brewster Bevis, senior vice president with Associated Industries of Florida, said regardless of whether there has been a wave of lawsuits, providers would rather be safe than sorry.

“It’s much easier to build a damn before the flood than during the flood,” he said.

SB 74 faces one more committee vote, in Rules, before reaching the Senate floor. A House companion, HB 7005 by Rep. Colleen Burton, R-Lakeland, also faces one more committee vote.

https://www.floridabar.org/the-florida-bar-news/senate-covid-19-liability-shield-bill-moves-again/

FJRI President, William Large Presents to the Enterprise Florida Board of Directors Meeting

March 4, 2021/in Florida Justice Reform Institute News

FJRI President, William Large, presenting to Enterprise Florida, Inc., during their Board of Directors meeting this week. He testified to the EFI board that a critical part of attracting and expanding businesses is a legal system that promotes the just, speedy, and inexpensive determination of cases, treats plaintiffs and defendants equally, and faithfully interprets laws in accordance with their plain language, leaving policymaking to the legislative branch. And, as a result of Gov. DeSantis’s judicial appointments and the resulting transformation of the state’s judiciary towards textualism, Florida’s steadily improving litigation climate presents a great opportunity to recruit more businesses to Florida. – March 4, 2021

The case for — and against — making it harder to sue health care facilities over COVID-19

March 4, 2021/in Tampa Bay Times

The case for — and against — making it harder to sue health care facilities over COVID-19

We take a look at the top arguments for and against some of the most controversial legislation making its way through the Legislature this session.

Resident physician Mikaela Aradi, Tampa, left, joined nurses and health care
workers from St. Petersburg General Hospital, Friday, May 29, 2020 in a protest against
HCA Healthcare, outside of the hospital. Nurses and healthcare workers are protesting
the possibility of layoffs and adequate protection for workers
during the coronavirus pandemic. [ SCOTT KEELER | Times ]

By Kirby Wilson – March 4, 2021

TALLAHASSEE — One of the top Republican priorities during the legislative session would make it harder for patients and their families to sue health care providers in COVID-19-related cases.

Although destined to pass, the measures, Senate Bill 74 and House Bill 7005, have proven to be quite controversial. Detractors say it would make it harder for mistreated patients to hold nursing homes or hospitals accountable in a state with an already troubled health care system. Supporters say the state should shield health care providers — the heroes of the coronavirus pandemic — from unnecessary lawsuits.

The liability bills are not to be confused with other bills — SB 72 and HB 7 — which would protect non-health care businesses from COVID-19 lawsuits.

Let’s break down key arguments for and against the legislation.

Pro: A wave of lawsuits is coming

Civil defense attorneys have testified before lawmakers that they’re staring down dozens of coronavirus-related lawsuits. Robin Khanal, an Orlando-area attorney who advocates for long-term care facilities, has said he’s got more than 60 cases or potential cases on his desk. William Large, the president of the Florida Justice Reform Institute, said at least nine COVID-19 related lawsuits have already been filed against health care providers in Florida.

The American Tort Reform Association, which is in favor of the liability protections, estimated that Florida plaintiff attorneys had spent more than $6.6 million in advertising for COVID-19 legal services as of December.

Opponents of the bill say warnings about a potential onslaught of litigation are still speculative. But even if lawsuits are coming, many of them are likely justified, they say. This is particularly true when it comes to long-term care facilities.

Two decades ago, Florida, considered then to have one of the worst nursing home systems in the country, was swimming in lawsuits against providers. In 2001, the state enacted a slate of sweeping reforms to the long-term care industry in exchange for making it harder to sue the facilities.

Since then, patient advocates argue, care standards have slipped. The tough legal environment for plaintiffs remains, however. The liability proposals would only further stack the deck against aggrieved families and patients, they say.

“This (bill) gives a pass to nursing homes that already may have been bad,” said Jeff Johnson, the Florida director of the AARP.

Con: Liability protections as a “shield”

Adequate procedures for controlling infections. Making sure facilities were adequately staffed. Properly communicating with residents’ families. Long-term care facilities should have been good at all of the above before COVID-19 hit Florida, patient advocates argue. If they weren’t, residents fared much worse during the pandemic.

That’s not a COVID-19 problem, but under the liability protection bills, caregivers would use new legal protections to paper over past shortcomings.

“We don’t want them to hide behind this liability protection in cases of abuse and neglect,” said Olivia Babis, a public policy analyst for Disability Rights Florida.

But Jeff Brandes, R-St. Petersburg, the Senate sponsor of the liability measure, said the issues health care providers had during the pandemic had little to do with how they performed previously.

“This is a global pandemic where we had conflicting guidance. No country in the world was prepared for this,” Brandes told the Times/Herald. “This swept over us like a tsunami, and our health care providers were told to swim through it,”

Pro: Frivolous lawsuits distract care workers

Those who work in long-term health care and support the liability bills warn of distracted workers.

Dedicated employees who worked night and day during a brutal pandemic will be forced to undergo endless depositions and legal wrangling, adding to their difficult day jobs.

“Lawsuits affect every single member of the nursing team,” said Kimberly Biegasiewicz, the Chief Nursing Officer for the long-term care firm Avante Group at a recent House committee meeting. “Unnecessary lawsuits put doubt in their mind that they have not given it their all.”

Union advocates argue, however, that the liability bills are not meant to protect workers. Rather, they exist to protect the bottom lines of health care conglomerates.

Roxey Nelson, the vice president of politics and strategic campaigns at 1199 SEIU United Healthcare Workers East, noted that the long-term care industry sees significant employee turnover because of the low wages offered to front line workers. (Employees bouncing from nursing home to nursing home may have exacerbated the the spread of the disease within facilities, researchers have noted.)

“The industry used COVID to say that they were having a hard time getting (certified nursing assistants) to stay at the bedside,” Nelson said. “At the end of the day, you’re not going to get (certified nursing assistants) to stay at the bedside for $11 per hour.”

Con: This shouldn’t be a top COVID-19 priority

Supporters of the liability legislation note that Florida would hardly be the first state to enact these protections. Nearly three dozen states and the District of Columbia have enacted COVID-19 liability protections for businesses.

Those who support the law, including Gov. Ron DeSantis, point out that compared to many other states, Florida’s health care system fared well during the pandemic. Despite Florida’s large elderly population, the state’s per capita death rate ranks only 26th out of the 50 states.

Detractors of the legislation argue that Florida has little to celebrate. After a year of trauma which claimed so many lives in long-term care — more than 10,500 so far — the state has its priorities out of whack, they say. Rather than focus on systemic problems, they say, the state is protecting well-heeled health care interests. And they’re doing so with COVID-19 legislation.

“The disappointment coming out of the last year is that rather than focusing on how to address this, we’re looking for ways to forget about it, sweep it under the rug,” Johnson of the AARP said.

https://www.tampabay.com/news/florida-politics/2021/03/04/the-case-for-and-against-making-it-harder-to-sue-health-care-facilities-over-covid-19/

The case for — and against — making it harder to sue health care facilities over COVID-19

March 4, 2021/in Yahoo News

The case for — and against — making it harder to sue health care facilities over COVID-19

Kirby Wilson, Tampa Bay Times
Thu, March 4, 2021, 2:53 PM·

TALLAHASSEE — One of the top Republican priorities during the legislative session would make it harder for patients and their families to sue health care providers in COVID-19-related cases.

Although destined to pass, the measures, Senate Bill 74 and House Bill 7005, have proven to be quite controversial. Detractors say it would make it harder for mistreated patients to hold nursing homes or hospitals accountable in a state with an already troubled health care system. Supporters say the state should shield health care providers — the heroes of the coronavirus pandemic — from unnecessary lawsuits.

The liability bills are not to be confused with other bills — SB 72 and HB 7 — which would protect non-health care businesses from COVID-19 lawsuits.

Let’s break down key arguments for and against the legislation.

Pro: A wave of lawsuits is coming

Civil defense attorneys have testified before lawmakers that they’re staring down dozens of coronavirus-related lawsuits. Robin Khanal, an Orlando-area attorney who advocates for long-term care facilities, has said he’s got more than 60 cases or potential cases on his desk. William Large, the president of the Florida Justice Reform Institute, said at least nine COVID-19 related lawsuits have already been filed against health care providers in Florida.

The American Tort Reform Association, which is in favor of the liability protections, estimated that Florida plaintiff attorneys had spent more than $6.6 million in advertising for COVID-19 legal services as of December.

Opponents of the bill say warnings about a potential onslaught of litigation are still speculative. But even if lawsuits are coming, many of them are likely justified, they say. This is particularly true when it comes to long-term care facilities.

Two decades ago, Florida, considered then to have one of the worst nursing home systems in the country, was swimming in lawsuits against providers. In 2001, the state enacted a slate of sweeping reforms to the long-term care industry in exchange for making it harder to sue the facilities.

Since then, patient advocates argue, care standards have slipped. The tough legal environment for plaintiffs remains, however. The liability proposals would only further stack the deck against aggrieved families and patients, they say.

“This (bill) gives a pass to nursing homes that already may have been bad,” said Jeff Johnson, the Florida director of the AARP.

Con: Liability protections as a “shield”

Adequate procedures for controlling infections. Making sure facilities were adequately staffed. Properly communicating with residents’ families. Long-term care facilities should have been good at all of the above before COVID-19 hit Florida, patient advocates argue. If they weren’t, residents fared much worse during the pandemic.

That’s not a COVID-19 problem, but under the liability protection bills, caregivers would use new legal protections to paper over past shortcomings.

“We don’t want them to hide behind this liability protection in cases of abuse and neglect,” said Olivia Babis, a public policy analyst for Disability Rights Florida.

But Jeff Brandes, R-St. Petersburg, the Senate sponsor of the liability measure, said the issues health care providers had during the pandemic had little to do with how they performed previously.

“This is a global pandemic where we had conflicting guidance. No country in the world was prepared for this,” Brandes told the Times/Herald. “This swept over us like a tsunami, and our health care providers were told to swim through it,”

Pro: Frivolous lawsuits distract care workers

Those who work in long-term health care and support the liability bills warn of distracted workers.

Dedicated employees who worked night and day during a brutal pandemic will be forced to undergo endless depositions and legal wrangling, adding to their difficult day jobs.

“Lawsuits affect every single member of the nursing team,” said Kimberly Biegasiewicz, the Chief Nursing Officer for the long-term care firm Avante Group at a recent House committee meeting. “Unnecessary lawsuits put doubt in their mind that they have not given it their all.”

Union advocates argue, however, that the liability bills are not meant to protect workers. Rather, they exist to protect the bottom lines of health care conglomerates.

Roxey Nelson, the vice president of politics and strategic campaigns at 1199 SEIU United Healthcare Workers East, noted that the long-term care industry sees significant employee turnover because of the low wages offered to front line workers. (Employees bouncing from nursing home to nursing home may have exacerbated the the spread of the disease within facilities, researchers have noted.)

“The industry used COVID to say that they were having a hard time getting (certified nursing assistants) to stay at the bedside,” Nelson said. “At the end of the day, you’re not going to get (certified nursing assistants) to stay at the bedside for $11 per hour.”

Con: This shouldn’t be a top COVID-19 priority

Supporters of the liability legislation note that Florida would hardly be the first state to enact these protections. Nearly three dozen states and the District of Columbia have enacted COVID-19 liability protections for businesses.

Those who support the law, including Gov. Ron DeSantis, point out that compared to many other states, Florida’s health care system fared well during the pandemic. Despite Florida’s large elderly population, the state’s per capita death rate ranks only 26th out of the 50 states.

Detractors of the legislation argue that Florida has little to celebrate. After a year of trauma which claimed so many lives in long-term care — more than 10,500 so far — the state has its priorities out of whack, they say. Rather than focus on systemic problems, they say, the state is protecting well-heeled health care interests. And they’re doing so with COVID-19 legislation.

“The disappointment coming out of the last year is that rather than focusing on how to address this, we’re looking for ways to forget about it, sweep it under the rug,” Johnson of the AARP said.

https://news.yahoo.com/case-against-making-harder-sue-195300284.html

House, Senate show differences on COVID-19 liability bills

March 4, 2021/in The Capitolist

House, Senate show differences on COVID-19 liability bills

by News Service of Florida | Mar 4, 2021

TALLAHASSEE — The push to fast-track legislation to protect Florida businesses from COVID-19 litigation continues to be bumpy.

While Tuesday was just the first day of the 2021 legislative session, Republicans in the House and Senate showed signs they continue to go in different directions on the sweeping proposals.

In January, GOP lawmakers released identical proposals to protect non-health care businesses from lawsuits related to COVID-19 deaths or injuries.

But Senate Judiciary Chairman Jeff Brandes on Tuesday told The News Service of Florida that he plans to expand the Senate’s version of the COVID-19 business liability bill (SB 72) to include protections for health-care providers, such as nursing homes and assisted living facilities. Those protections have been contained in another bill (SB 74) — and the House has moved forward with separate proposals for general businesses and health-care providers.

“I think the key is that we are focused on one singular issue,” Brandes, R-St. Petersburg, said, adding that he plans on rolling his proposals into one bill when the Senate Rules Committee considers the issue.

But that could prove controversial.

Among other things, the health-care bill provides broad immunity protections, including providing immunity to nursing homes, assisted living facilities, hospitals and physicians if “supplies, materials, equipment, or personnel necessary to comply with the applicable government-issued health standards or guidance at issue were not readily available or were not available at a reasonable cost.”

The House’s proposed health-care liability protections (HB 7005) do not include a similar provision. The House Pandemics & Public Emergencies Committee voted 12-6 to approve that bill Tuesday evening.

Meanwhile, the full House is scheduled Thursday to take up its version of the bill (HB 7) that would provide liability protections to non-health care businesses. It likely will be one of the first two bills to get approval from the House during this year’s session.

Brandes made his remarks after the Senate Commerce and Tourism Committee voted 7-4 along party lines to approve the Senate bill focused on non-health care businesses. Members of the committee debated — and shot down —a spate of amendments offered by Democrats, including several proposed by Sen. Jason Pizzo, D-North Miami Beach.

For example, one Pizzo amendment would have deleted part of the bill that would allow judges to decide whether defendants made good-faith efforts to “substantially comply” with health standards or guidance issued by authorities. If judges determine that good-faith efforts were made, lawsuits would be precluded from going forward. An attorney, Pizzo argued that the provision would make judges the arbiter of facts and not the arbiter of law.

Pizzo also proposed an amendment that would have deleted a requirement that plaintiffs prove by “clear and convincing evidence” that defendants were “at least grossly negligent.” The Pizzo amendment would have maintained a current standard for personal injury lawsuits, which is proof by a greater weight of the evidence.

The committee also rejected an amendment by Sen. Annette Taddeo, D-Miami, that would have mandated businesses that want to tap into the liability protections to post signs at entrances advising customers that the businesses are “not liable for transmission or exposure of COVID-19.”

“I think the consumer needs to know that they are walking into a location that is fulfilling all the parts of this bill to protect themselves from liability,” Taddeo said in support of her amendment. “And that’s all I am asking for: a sign at their door.”

While the Senate panel rejected all of the proposed amendments, the Senate bill is different from the House version for non-health care businesses. That’s because the House Judiciary Committee last month changed the House bill to make clear that if different guidelines and standards were in effect at the time plaintiffs were allegedly infected with COVID-19, businesses would only have needed to comply with one of the standards to get liability protections.

“Adding this to the Senate bill would perhaps add some clarity to this issue as the bill moves forward,” said Florida Restaurant & Lodging Association General Counsel Samantha Padgett.

While Republican leaders have made liability protections a top priority, critics noted that the state has not seen a flood of COVID-19-related lawsuits against businesses.

But proponents of the legislation argue that the numbers of lawsuits filed is misleading. William Large, president of the Florida Justice Reform Institute, testified that he is aware of 53 potential lawsuits based on the number of presuit notices businesses have received.

National Federation of Independent Business lobbyist Tim Nungesser said the Senate bill would provide much-needed protections to businesses during the pandemic.

“I would submit to you this bill in front of you is a COVID-19 vaccine for small businesses,” Nungesser said. “We know that vaccines are meant to be given to folks to protect them so they don’t get sick. This bill in front of you protects small business owners so they don’t get sued in a frivolous way.”

But some critics argue that business groups have unsuccessfully pushed for lawsuit limitations for years and that the pandemic has made it convenient for lawmakers to grant them their wish.

Florida AFL-CIO lobbyist Rich Templin said local unions have been working with businesses since the beginning of the pandemic for worker protections. Sometimes the unions have been successful in getting businesses to agree to mask requirements and other safety steps, but sometimes they aren’t successful.

“We now have a bill that makes every lawsuit frivolous. This really doesn’t seem to be in the best interest of the working people,” Templin said. “There seems to be this assumption that lawyers are just evil devils and workers are just freeloaders looking to sue and the business community is just saints and angels. And that’s just not the reality of what we’re experiencing as advocates of working people each and every day.”

https://thecapitolist.com/house-senate-show-differences-on-covid-19-liability-bills/

Florida Justice Reform Institute

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