Florida Politics – Page 7 – Florida Justice Reform Institute

Lawmakers weigh changes in program for injured infants

April 20, 2021/in Florida Politics

April 20, 2021

The proposals deal with the Florida Birth-Related Neurological Injury Compensation Association.

As the 2021 legislative session nears the end, the Florida House and Senate are tackling medical malpractice, with lawmakers moving forward with bills that would change a longstanding no-fault insurance program for infants with neurological injuries.

The proposals deal with the Florida Birth-Related Neurological Injury Compensation Association, widely known as NICA, that was set up in the 1980s to pay for care of children born with brain or spinal-cord injuries. The program has drawn heavy attention recently because of a series of stories in the Miami Herald.

The House and Senate bills have differences, but they both contain provisions that representatives of NICA and the insurance industry say are problematic.

The House Judiciary Committee on Monday put an amendment on its bill (HB 1165) that would require the state Agency for Health Care Administration to develop policies making clear that NICA is a third party responsible for payment of services and that Medicaid is the payer of last resort. The change would apply retroactively and direct the agency to determine how much money Medicaid could recoup from NICA.

Steve Ecenia, general counsel for NICA, said the retroactive application would be a problem because it could affect a lawsuit pending at the 11th U.S. Circuit Court of Appeals.

“If the Legislature wants to make a decision and treat NICA differently prospectively, that’s your prerogative to do. I would just plead with you not to take action that could potentially cost hundreds of millions of dollars to the NiCA program, potentially put it in financial jeopardy and really derail where we are trying to go,” Ecenia said.

The House bill would raise the payment from $100,000 to $250,000 for parents or legal guardians of infants who sustained birth-related neurological injuries. That would apply to petitions of claims filed since the beginning of this year. The bill would raise the death benefit for an infant who suffered a neurological injury from $10,000 to $50,000.

The Senate Appropriations Committee, meanwhile, approved a bill (SB 1786) on Monday that also contains a provision about Medicaid third-party liability, though it is not identical to the House version.

But the Senate bill also would eliminate NICA effective Dec. 31, 2026, unless the Legislature passes a law to re-enact the program. That move — known as a “sunset” — drew concerns from the insurance industry.

“Those of you who have been around a few years know that tort reform is extremely, extremely difficult. If you put the termination provision in, the ability to get it back will be World War III … Once that sunset sets in, it’s armageddon.” said lobbyist Mark Delegal, whose clients include The Doctors Company, which provides medical-malpractice coverage for physicians.

NICA was created by lawmakers in 1988 as a no-fault system to pay for the care of children so long as the physicians participate in NICA and pay yearly assessments. Participating physicians are required to pay $5,000 each year for coverage, and all licensed Florida physicians pay a mandatory fee of $250, regardless of specialty.

Hospitals pay $50 for each live birth during the previous calendar year. In 2019, NICA collected $26,989,960 in hospital and physician assessments; in 2020, NICA collected $27 million, according to a legislative staff analysis.

Another provision in the Senate bill that Delegal and William Large, president of the Florida Justice Reform Institute, oppose would say it is not the intent to “shield physicians who engage in willful misconduct, gross negligence, or recklessness or to preclude individuals from filing legitimate claims of medical malpractice against such physicians.”

Delegal said that proposed change is a “clear shift” in policy and said NICA would not survive because it would encourage litigation.

Like the House bill, the Senate version would increase the death benefit to $50,000 and would up the parent or guardian award to $250,000 for claims filed after Jan 1. But the Senate bill would direct NICA to make retroactive payments to parents or guardians who received awards before this year.

NICA Executive Director Kenny Shipley told members of the House Judiciary Committee that there’s “another side to this story than what you saw come out of the Miami Herald.”

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Republished with permission from The News Service of Florida.

https://floridapolitics.com/archives/422022-lawmakers-weight-changes-in-program-for-injured-infants/

Despite business pushback, House data privacy bill gets panel approval

April 14, 2021/in Florida Politics

Scott Powers – April 14, 2021

‘We need to set some basic levels of expectations of privacy.’

Businesses feel the financial burden for protecting consumers’ data. Meanwhile consumer advocates argue customers would be shocked to know what information businesses have on them.

That was the crux Wednesday of public discussion and debate over Republican Rep. Fiona McFarland‘s consumer data privacy bill (HB 969) in the House Commerce Committee.

Business interests united in opposition, saying the measure would create untold operational and legal expenses. McFarland, of Sarasota, and others, contended businesses just don’t want to be forced to disclose what data they have on their customers.

Companies are collecting, compiling, selling, and sharing consumers’ personal information on everything from biometrics to DNA, to product preferences and buying histories, she warned. Some of the data might be gathered through surreptitious means, she warned.

“If the government had a fraction of the information that private companies have about us, and our thoughts, and our feelings, we would run for the hills screaming,” McFarland said. “And I think we’ve just become so enamored by the convenience that we’ve traded our privacy for that.”

The Commerce Committee concurred Wednesday, approving her measure unanimously, and sending it to the House floor.

The bill would give consumers the right to find out what personal information a company has on them, how the company got it, and what the company does with it. It gives consumers rights to ask that data be deleted or corrected, and to opt-out of having their personal data sold to or shared with other companies. It gives the Attorney General ability to go after companies for civil penalties for violations, perhaps the most alarming provision to business interests.

“Without this bill, there is no way a customer can know what information a company has about them, and how they got it,” McFarland said.

Wednesday’s approval came after McFarland offered a strike-all amendment she said represents efforts to address a number of business concerns. Among other things, the amendment raises the ceiling of minimum size qualifications on companies before being covered under the law. It also delayed implementation until July 2022, to give businesses time to adjust.

“We have taken extreme care to understand any unintended consequences to businesses,” she said.

But that wasn’t enough, based on the unanimity of opposition Florida’s business community offered Wednesday.

Most frequently, opponents warned that the bill’s private right of action provision would open Florida businesses to a whole new level of lawsuits, for consumers’ claims of damages and infringements caused by information collection, use, and sale. California, which has a weaker law than McFarland’s proposal, already has seen 76 class-action lawsuits filed.

William Large, president of the Florida Justice Reform Institute, said the bill opens up five new areas of consumer liability concerns for businesses, regarding potential data breeches, claims that a company failed to delete data, claims a company failed to correct data, the sale of data to other companies, and the sharing of data with other companies.

“All of those could lead to rights of action,” Large said.

There also was a concern about businesses having to set up massive compliance systems to respond to consumers’ demands for personal information.

Brewster Bevis of Associated Industries of Florida said a Florida TaxWatch report showed the bill could cost Florida businesses $36 billion.

“This is a very costly bill to Florida businesses,” Bevis said.

McFarland called the estimated costs “exaggerated” and dismissed some of the criticism as “knee-jerk.”

The boom in collection and dissemination of consumers’ personal data, much of it developed through e-commerce, has gotten out of hand, to the point where most consumers would be shocked to know what companies know about them, and how they learned it, she argued.

“I had one CEO actually tell me, he said, ‘Fiona, you simply must give me a carve-out, me and my business a carve-out, because if I had to tell my customers what information I had about them, they would be so creeped out they would all leave me tomorrow,’” she said.

And there are risks to consumers’ because of that, particularly through data hacking breaches that have become too commonplace, she argued.

“We need to set some basic levels of expectations of privacy. Perhaps it’s innocuous that someone knows what color suits I buy, but in the past, in order to get that information, you would either have to follow me to the mall or look inside my closet. Which I think before we were lulled into complacency with the convenience of e-commerce, that would have completely creeped us out,” she said.

The Senate companion is SB 1734 from Sen. Jennifer Bradley of Orange Park.

https://floridapolitics.com/archives/420170-despite-business-pushback-house-data-privacy-bill-gets-panel-approval/

Dialed-back Internet Privacy Protection Act heads to Senate floor

April 6, 2021/in Florida Politics

Renzo Downey – April 6, 2021

Changes made Tuesday lost the bill support from Democrats.

A less onerous version of legislation protecting internet users’ data privacy is on its way to the Senate floor.

The measure (SB 1734), carried by Fleming Island Republican Sen. Jennifer Bradley, would give consumers the right to control how their personal online data is shared and sold. That data helps businesses know more about individual consumers and helps make things like targeted ads possible.

Bradley reworked the bill, titled the Florida Privacy Protection Act, with amendments adopted Tuesday to shrink the scope of the planned legislation that has been identified as a priority of Gov. Ron DeSantis

“The internet of today is a one-way street where the most intimate details of a consumer’s life, usually unbeknownst to the consumer, are monitored and sold to the highest bidder,” Bradley said. “The financial success of these companies who market our private lives are built on the consumers’ lack of knowledge and lack of consent to this process.”

With the latest changes, the proposal would only apply to businesses that annually buy, sell or share the personal info from 100,000 or more users or that generate at least 50% of its global annual revenue from selling or sharing personal information about consumers. Businesses that operate within federal industry requirements, such as banking and health care, would be exempt.

Bradley also settled on July 1, 2022 as the effective date for the proposal’s provisions.

As with the original bill language, adult consumers could opt out to having their data sold, while minors would have to opt in. Users could also opt out of targeted advertising.

It would require businesses, if asked, to share what info they have, how they got it, and how they use it.

Bradley’s amendment also eliminated a provision that would have let private individuals file lawsuits for violations to the state law. Instead, the onus would now fall on the Attorney General’s office.

That fixed concerns from legal groups, including Florida Justice Reform Institute and its President, William Large, who feared the bill’s broad language on personal information could lead to potential class action lawsuits. However, the reworked language drew opposition from Democrats on the panel.

The original Senate bill and the House version (HB 969), carried by Sarasota Republican Rep. Fiona McFarland, drew comparisons to California’s internet privacy law. That state’s data privacy provisions cost businesses $55 billion, according to one estimate. But Bradley said the new version would touch far fewer companies.

St. Petersburg Republican Sen. Jeff Brandes still had concerns about the legislation’s cost on businesses. And with the new thresholds for the bills to kick in, he feared some companies might intentionally remain within those boundaries to avoid regulation.

He feared the complex amendment filed the day before the committee was problematic for the panel to approve.

“For a state that values certainty in business … this bill is, to me, full of uncertainty, because all 20 of us, if cornered, would provide you radically different answers of what this bill does,” Brandes said.

However, Bradley defended the changes.

“The only certainty in this area is we have businesses who are collecting unknown amounts of information about Florida consumers,” she said. “They are selling it and they are monetizing it, and that is for certain, and I don’t share the confidence that the federal government is going to step in in a timely manner and shore up the protections for Floridians.”

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

McFarland’s bill awaits a hearing in its final committee, the House Commerce Committee.

https://floridapolitics.com/archives/417696-dialed-back-internet-privacy-protection-act-heads-to-senate-floor/

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

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.

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

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

House, Senate diverge on health lawsuit bills

February 9, 2021/in Florida Politics

House, Senate diverge on health lawsuit bills

Chief among the differences are how long legal protections should be in effect.

By News Service Of Florida on February 9, 2021

Lawmakers are poised this year to pass legislation to protect health-care providers and other types of businesses from lawsuits related to COVID-19.

But while the House and Senate unveiled identical bills for non-health care businesses, their proposals aren’t the same when it comes to legal protections for long-term care providers, hospitals, physicians and other parts of the health-care industry.

Chief among the differences are how long legal protections should be in effect, types of COVID-19-related lawsuits that would be limited and whether to require physician affidavits when lawsuits are filed.

A proposed bill (PCB HHS 21-01) the House unveiled Friday would make changes in how lawsuits are filed, including requiring the physician affidavits, but would rescind the changes “one year and one day” after they become effective.

By contrast, the Senate proposal (SB 74), filed by Senate Judiciary Chairman Jeff Brandes, a St. Petersburg Republican, would apply to COVID-19 lawsuits for injuries that occur up to one year after the end of a declared state or federal public health emergency, whichever is later.

The chambers also take different approaches to the types of COVID-19-related claims that would be limited.

The House bill would apply to medical claims filed against nursing homes and assisted living facilities, as well medical-malpractice claims. It also would apply to COVID-19 negligence cases that could be filed against numerous other types of health-care providers, from physicians to federally qualified health centers to pharmacies and clinical laboratories.

The Senate bill, by contrast, defines COVID-19 lawsuits as claims, “whether pled as negligence, breach of contract or otherwise,” alleging that health-care providers failed to follow clinical or government-issued health standards or guidance related to COVID-19; failed to properly interpret or apply the standards or guidance in providing health care, allocation of scarce resources, or assistance with daily living; or failed to follow government-issued health standards or guidance relating to infectious diseases if there were no applicable standards and guidance specific to COVID-19.

In another difference, the House proposal would lead to judges deciding whether defendants made a “good faith effort to substantially comply with any authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.” If judges determine such good-faith efforts were made, defendants would be immune from liability.

Despite the differences, health care lobbyists were quick to praise the House and Senate for the proposals.

“Lawsuits are not the remedy to ensuring high quality care — they simply divert precious resources away from our care centers and send a dangerous message to the health care heroes on the front lines — that the clinical, life-saving decisions they made to protect residents will be used against them,” Emmett Reed, president and CEO of the Florida Health Care Association, said in a prepared statement after the release of the House proposal.

Reed’s association, the state’s largest nursing-home industry group, issued similar praise when Brandes filed his bill.

Lawmakers will start the 2021 Legislative Session March 2, and lawsuit limits for health-care providers and other types of businesses are a top priority for Republican leaders.

Chris Nuland, a Jacksonville attorney and lobbyist for physician groups, said both the House and Senate bills take steps to protect “health care heroes” from lawsuits stemming from the pandemic, which has killed 27,815 Florida residents, according to the latest state data.

Nuland praised the House’s proposal for specific inclusion of medical malpractice claims.

“This is an excellent piece of legislation. Should this pass, the health care providers who risked their lives treating patients, or were told they could not legally treat patients, would not be punished for doing the right thing,” Nuland said in a statement to The News Service of Florida.

There are some changes, however, physician associations would like to see in the House proposal.

“Ideally, the bill would not sunset in one year, as we have no idea how long this pandemic will last,” Nuland said of one of the potential changes to the measure.

Health care providers have been calling for protections from COVID-19-related lawsuits for nearly a year. The Florida Medical Association, the Florida Osteopathic Medical Association and the Florida Justice Reform Institute in March 2020 requested that Gov. Ron DeSantis issue an executive order protecting physicians from medical-malpractice lawsuits for care provided during the pandemic.

Hospitals and nursing homes quickly followed suit, sending a letter to the governor on April 3 asking for immunity from civil and criminal liability for “any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” during the pandemic.

Under the House’s proposal a plaintiff couldn’t file a COVID-19 lawsuit against a health care provider without first getting an affidavit from a state-licensed physician attesting that the claim was the result of the defendant’s actions. The Senate bill does not have such a requirement.

The affidavit requirement in the House bill is identical to one in the bills that would shield other types of businesses from COVID-19 liability. Those bills (HB 7 and SB 72) are being fast-tracked through legislative committees, but the affidavit requirement has drawn objections from House and Senate Democrats.

Florida Justice Reform Institute president William Large said the affidavit requirement mirrors those in laws governing how medical malpractice lawsuits are filed.

“We want to make sure it’s not taken away,” said Large, whose business-backed group lobbies on a variety of issues aimed at limiting lawsuits.

While the House and Senate bills include differences, they also have similarities. As an example, both proposals would require plaintiffs to file complaints within one year after such things as a COVID-19 illnesses or deaths occur. If such a cause of action “accrued” before the legislation takes effect, the plaintiff would have one year to file a lawsuit.

___

Republished with permission from the News Service of Florida.

https://floridapolitics.com/archives/402147-house-senate-diverge-on-health-lawsuit-bills

COVID-19 civil liability protection bill clears first hurdle

January 13, 2021/in Florida Politics

COVID-19 civil liability protection bill clears first hurdle
House Speaker Chris Sprowls has vowed to fast track the legislation.

By Jason Delgado on January 13, 2021

The House Civil Justice & Property Rights Subcommittee advanced legislation Wednesday that creates COVID-19 liability protections for select Florida businesses.

The bill, HB 7, cleared its first committee stop with an 11-6 vote. Republican Rep. Lawrence McClure is the bill sponsor.

By design, HB 7 shields Florida businesses, nonprofits, schools and religious institutions from frivolous COVID-19 related lawsuits.

The bill’s retroactive protections apply to organizations who make “good faith effort” to follow federal, state and local health guidelines.

Advocates contend the measure is a necessary component to Florida’s economic recovery.

“My concern is we can lose an entire generation of entrepreneurs if we don’t provide some certainty,” warned Sarasota Rep. James Buchannan.

The bill advanced without five amendments proposed by Democratic Ranking Member Ben Diamond and Rep. Yvonne Hayes Hinson. While three amendments failed and two were withdrawn, the bill underwent considerable debate.

Diamond’s amendments, among other pursuits, challenged a provision requiring a Florida physician to attest that a defendant contracted COVID-19 from the defendant’s premise.

Another amendment aimed to add employee protections into the measure. The bill — under protest by some lawmakers — remains without employee protections.

“I’m not here to say that this is more important than employee protections or other issues,” McClure said, later contending, “I want to make sure that our businesses are very comfortable reopening and operating.”

Other concerns focused on a provision mandating plaintiffs to prove with “clear and convincing evidence” that the defendant’s actions were “at least grossly negligent.”

“I think that that idea, candidly, jeopardizes the bill and I think it should come out of the bill,” Diamond suggested.

CFO Jimmy Patronis, a lead advocate for the protections, appeared before the subcommittee to speak in favor of the measure.

“Those who are working to do right by their customers and are following government guidelines should be able to operate without fear of frivolous litigation,” Patronis said. “Without actions by the Legislature, we could see more litigation raise insurance rates and hamper Florida’s recovery.”

Since Florida’s reopening, Patronis has contended that protections are needed to help Florida’s economy recover. To drive the plea home, he’s hosted “Rally at the Restaurant” tours with event stops in cities statewide. He is often accompanied by supportive GOP lawmakers and local business leaders.

Florida Justice Reform Institute (FJRI) President William Large also spoke in favor of the legislation before the subcommittee and offered some numbers.

Citing a summer study by the institute, Large said the FJRI identified at least 53 COVID- 19 related lawsuits, though he suspects the number is “way higher.”

The bill’s sponsor, alternatively, said he’s noted fewer than 10 lawsuits.

“Florida hasn’t faced a pandemic in over 100 years,” Large said. “Our liability laws were not built to handle something so novel and unexpected. We must modernize these laws now to avoid an explosion of costly lawsuits that threaten to keep our economy from getting back on track.

House Speaker Chris Sprowls vowed last week to prioritize HB 7. He described the bill’s advance Wednesday as a “win for small business owners.”

Florida Chamber of Commerce President and CEO Mark Wilson, meanwhile, echoed the Speaker’s sentiment in a statement.

“Today’s hearing was a step in the right direction as we aim to protect from frivolous COVID lawsuits Florida’s businesses that are doing their part to keep employees and customers safe and relaunch our economy,” Wilson said. “The business community greatly appreciates Rep. McClure’s leadership on this issue, the confidence moving this measure quickly sends to both employers and employees, and the certainty it will provide for many job creators. “

The bill will next undergo a House Health and Human Services Committee workshop on Thursday.

https://floridapolitics.com/archives/395128-covid-19-civil-liability-protection-bill-clears-first-hurdle

Florida remains on watchdog group’s ‘watch list’ for litigation abuse

December 8, 2020/in Florida Politics

Cover art for the ATR Foundation’s Judicial Hellholes 2020/2021 report

Florida remains on watchdog group’s ‘watch list’ for litigation abuse
ATFR says Florida is out of the hellhole, but not out of the heat.

By Scott Powers on December 8, 2020

Florida is no “hellhole” for corporations and individuals hoping to avoid being targeted by excessive litigation, but it’s not out of the heat yet, according to the latest national report from American Tort Reform Foundation.

That organization is keeping Florida on its “watch list,” just above its “Judicial Hellhole” designation of municipalities, specific courts, and states that the group says are plagued by bad tort laws and “aggressive personal injury bar and fraudulent, abusive litigation practices.”

The ATRF’s annual Judicial Hellhole Report’s worst list includes the cities of Philadelphia, New York, and St. Louis, the counties of Cook [Chicago,] Madison [East St. Louis,] and St. Clair [Belleville] in Illinois, and the states California, Louisiana, Georgia, and Minnesota, along with a nod to South Carolina’s asbestos litigation.

Florida tops the next-worst tier in the ATRF’s Watch List. That list also includes Oklahoma, New Jersey, Colorado, Maryland, West Virginia, and the Montana Supreme Court.

Florida was removed from the ATRF’s Judicial Hellhole list last year. The organization credits Gov. Ron DeSantis for improving the state’s civil justice system, and for his appointments to the Florida Supreme Court, which the organization said in a news release have “reshaped the state’s judicial system and set it on a path toward becoming more balanced.

In that release, the American Tort Reform Association said it will keep its eye on Florida’s state courts and lawmakers, as bad faith laws, “no-fault” personal injury protections, and skyrocketing attorneys’ fees and other abuses continue plaguing the Sunshine State.

However, the organization said Florida still has rampant lawsuit abuse in many areas of the state – specifically in South Florida.

“Florida is one of the states hit hardest by COVID-19, and the repercussions of the virus are amplified by the legislature’s inaction in protecting small businesses and curbing lawsuit abuse,” ATRA President Tiger Joyce stated in the release. “Especially in South Florida, out-of-control legal advertising and trial attorney abuse of ‘letters of protection,’ bad faith laws, and assignment of benefits threaten to set back any progress that has been made in cleaning up Florida’s courts.”

The Florida Justice Reform Institute joined in the praise for DeSantis for addressing tort reform in Florida. In its own news release, FJRI President William Large, said DeSantis is “single-handedly pulling Florida out of its judicial hellhole.”

https://floridapolitics.com/archives/387489-florida-remains-on-watchdog-groups-watch-list-for-litigation-abuse

Insights from Florida Chamber Insurance Summit: Liability protections needed as Session nears

November 6, 2020/in Florida Politics

Insights from Florida Chamber Insurance Summit: Liability protections needed as Session nears

Sen. Jeff Brandes has a bill prepped to protect businesses from lawsuits related to COVID-19.

By Renzo Downey on November 6, 2020

One legislative priority identified in the Florida Chamber of Commerce’s Insurance Summit is coronavirus liability legislation.

With Congress slow to act on COVID-19 liability protections for businesses, Gov. Ron DeSantis has said he wants the Legislature to develop its own protections for businesses.

Sen. Jeff Brandes, a St. Petersburg Republican, has legislation ready to file that would protect businesses that follow state and federal health guidelines from facing lawsuits. Similarly, his bill would protect individuals from being sued by businesses.

But Florida Justice Reform Institute President William Large told a panel at the Florida Chamber of Commerce’s Insurance Summit Friday that the state should be careful with how it tailors reforms for the business community. In recent months, other states have addressed tort reform, but Large said some states have created presumptions that “if you got COVID, you got it at work.”

“I think there’s a lesson there that if the business community tries to address some type of tort or civil liability COVID bill that it make sure that it stays in that lane and doesn’t allow it to go into the lane of creating a presumption that would create further problems,” Large said.

However, Brandes says his bill would require a physician to affirm that the plaintiff became infected at the workplace.

“Generally most other contagious diseases, people aren’t suing for,” he told Florida Politics, adding that dozens of lawsuits have already been filed in Florida. “I’ve never heard of somebody suing a company because they got the flu.”

Both Brandes and Large don’t expect coronavirus liability legislation to change insurance rates or workers compensation coverage drastically, if at all. Business interruption insurance can’t cover infectious diseases, National Association of Mutual Insurance Companies Vice President Erin Collins said during the panel.

“There is absolutely no way to create a pool where you could spread the risk sufficiently when you’re talking about something that hits everywhere, everyone, all at the same time,” she said. “It’s completely contrary and therefore uninsurable.”

While the legislation is still a work in progress, it is ready to file if the Legislature decided to hold a Special Session. Currently, there are no plans for one, and Committee Weeks begin in January ahead of the Regular Session that begins in March.

Brandes expects the bill to be passed swiftly and to apply retroactively.

DeSantis has floated liability protection legislation as one of his priorities. Congress has yet to pass liability protection legislation as Republicans’ side of the “grand bargain” after Democrats secured the monetary aid in the CARES Act, he told reporters in September.

“If you just have a store and someone (gets sick) — you cannot be held liable. First of all, how would you even prove someone was — so we’ve never done that I don’t think with any other type of virus where you can be sued, so there’s a lot of concern about liability,” DeSantis said. “I think it holds the economy back.”

A task force of state business leaders later that month released a list of recommendations, including that essential businesses should be exempt from future COVID-19-related lawsuits.

https://floridapolitics.com/archives/381804-insights-from-florida-chamber-insurance-summit-liability-protections-needed-as-session-nears

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