Law.com – Florida Justice Reform Institute

The Law Firm Disrupted: Still Looking for the Gold Rush

November 2, 2023/in Law.com

Changes in Arizona have yet to cause a real shakeup, but there’s one type of law firm that sees promise in the possibilities unleashed by the 2021 reforms.

Dan Packel – November 02, 2023 at 06:12 PM

It’s been a while since we’ve dropped in on Arizona’s deregulated market for legal services, and there’s a reason for that.

Over the past several years, I’ve periodically explored the possibilities opened up by the Arizona Supreme Court’s move at the start of 2021 to eliminate prohibitions against non-lawyer ownership of law firms.

And while later that year, I quoted an Arizona law firm leader likening what was happening in his state to the California gold rush of 1849, one expert in a recent forum was emphatic. “There’s isn’t the gold rush that one might have expected,” said Boston University School of Law professor Maya Steinitz at a webinar on the economics of law firm ownership hosted last month by the Law & Economics Center’s Civil Justice Academy at the Goerge Mason University Antonin Scalia Law School.

As of the beginning of July, just over 50 legal-related entities have been licensed as alternative business structures. In the mix are a few names that might be broadly recognizable to those who pay attention to new modes of legal service delivery: Axiom, Legal Zoom (through its LZ Legal Services LLC unit), and Elevate. There are some less familiar names doing novel things. But what’s standing in the way of some more brand-name licensees?

For Arthur Burger, who teaches professional responsibility at GMU law school, there’s a constitutional impediment, highlighted in two ethics opinions from the American Bar Association’s Standing Committee on Ethics and Professional Responsibility.

“If a single state bar were to permit non-lawyer ownership…that would not immunize lawyers in multi-jurisdictional firms and lawyers that are members of other state bars, which do have a prohibition—in rule 5.4—from participating in a law firm that has non-lawyer ownership,” he said.

That’s just one part of the reason why risk-adverse Big Law is steering clear. No one is interested in courting disciplinary action for being on the bleeding edge. But general conservatism in approach is part of the story too. Who needs to share record profits with an additional set of hands? And yet, given the increasing professionalization of the C-suite in so many firms, maybe there’s a case for it. Wouldn’t firms serious about installing business-savvy top brass—individuals who don’t necessarily have a J.D.—be intrigued about the fresh prospects for recruitment? “Stick around, and we can give you an equity share.”

For now, that seems more like a thought experiment than anything else.

But according to William Large, president of tort reform group Florida Justice Reform Institute and a participant in the GMU forum, there is one group of firms that are taking the prospects of a broader regulatory change seriously.

“There’s a lot of very big, lucrative personal injury firms in Florida that are extraordinarily profitable. And they can only sell their shares to other Florida lawyers. Potentially that firm would be much more valuable to other investors,” he speculated.

Florida’s own regulatory reform process came up short in late 2021. But scroll down the list of those Arizona licensees and Large is onto something. Names like National Mass Tort & Class Action Law Firm PLLC and Bad Drug Law Firm PLLC don’t leave much to the imagination. The incentives might only apply to a limited set of players – not enough for a gold rush – but non-lawyer ownership clearly makes sense for some.

https://www.law.com/2023/11/02/the-law-firm-disrupted-still-looking-for-the-gold-rush/

Proposed Florida Laws are Good News for Insurers—as Plaintiff Lawyers Push Back

March 3, 2023/in Law.com

Proposed Florida Laws are Good News for Insurers—as Plaintiff Lawyers Push Back

“Governor DeSantis has repeatedly pledged to take on the toughest issues, and he has delivered,” William Large said. “Now, with help from the legislature, he’s taking on the trial lawyers in dramatic fashion.”

March 03, 2023 at 02:24 PM

The large meeting hall of Senate Chamber in the Old Capital of Florida, Tallahassee, FL, USA. Credit: Cheri Alguire/Shutterstock.com

As the larger tort reform bill, HB 837, is making its way through the legislature in Tallahassee, South Florida plaintiffattorneys and clients are up in arms over not only about the proposed law, but another bill introduced this week, Senate Bill 1274.

Collen Burton Rep. Colleen Burton, R-Lakeland, debates on the House floor. Florida House of Representatives

This bill, introduced by state Sen. Colleen Burton, is anticipated to be up in the Senate Tuesday afternoon, and thenagain in the House on Wednesday afternoon, said Miami lawyer Stephen Forst Cain of Stewart Tilghman Fox Bianchi &Cain.

Cain is in the state capitol fighting the bill and a slew of proposed amendments surrounding the controversial piece oflegislation aimed at what Gov. Ron DeSantis says is “comprehensive reforms to decrease frivolous lawsuits and preventpredatory practices of trial attorneys that prey on hardworking Floridians.”

“I think this is Big Insurance companies convincing legislators that we need to be a business-friendly state. The problemis that in the meantime, they’re trampling on the rights of everyday Floridians and making our safe state unsafe,” Cainsaid. ”That bill, frankly, makes our state unsafe. It disincentivizes business owners and apartment complexes fromtaking appropriate security measures, and I think will result in more crime not less—all to get big insurance moremoney.”

Stephen Forst Cain Stephen Cain, with Stewart Tilghman Fox Bianchi & Cain in Miami. Courtesy photo

‘All Types of Lawsuits’

Both bills plus the proposed amendments are the talk of Tallahassee and South Florida.

Davie legal ethics professor Robert Jarvis said 837 is a terrible bill.

Jarvis NSU Law Professor Robert Jarvis. (Credit: Melanie Bell/ALM)

Jarvis, who teaches at Nova Southeastern University, says at its base level, the bill continues the insurance industry’slong effort to reduce payouts to plaintiffs.

“The industry has never had a more supportive governor or legislature, and that is why it is striking now and findingsuccess,” Jarvis said.

Jarvis said it would be a change to the comparative negligence system—used for decades— and designed to helpdefendants, who in most cases are companies.

“All plaintiffs, whether crime victims or not, take a chance when they file a lawsuit that they will be unsuccessful,” hesaid. “And HB 837’s changes are not specifically aimed at crime victims. Instead, they apply broadly to all types oflawsuits.”

Changes Would Affect Premises Liability

Crime victims press conference Victims of local crime ask Stute Leaders to ‘lote No on tort reform bills HB 837* and HB 1165 during the upcoming legislative
session, in Miami Lakes, on Thursday, March 2, 2023. Photo: Lisa Willis/ALM

But that’s of little comfort to former victims of crime who gathered in Miami Lakes Thursday to voice their concerns.

The group was comprised of victims of violent crime, victims of negligence and those who lost loved ones to tragedy,most of which sought financial restitution via lawsuits in the past.

Spokesperson Renee Williams with the advocacy group National Center for Victims of Crime said the proposedchanges make her worried for Floridians “… and a little bit angry.”

“I think that there has been a misnomer that this is tort reform,” Williams said. “And while I totally respect some of thepolicy purposes behind this bill, it’s disheartening that the amendment that joined this week was done with absolutely noconsideration to crime victims.”

Williams is concerned with the wording of the “premises liability for criminal acts” by third parties in the bill, which shesaid alludes to owners or principal operators of multifamily properties and businesses having certain presumptionsagainst liability.

“If business owners and if businesses in the state of Florida have a crime committed on their property, as long as theycan point to the perpetrator or the criminal as being responsible, they’re no longer responsible for anything, includingcommon sense safety measures that keep individuals and communities safe,” she said.

‘Slip It Through the Legislature’

Jarvis, the ethics expert, said some lawyers are reluctant to discuss the proposed changes.

“Plaintiffs’ lawyers, of course, clearly are against it, (but) why won’t any defense lawyers speak? I think the answer isobvious: This is a bad bill for consumers, and its opponents are hoping to slip it through the legislature,” he said.“Recognizing, however, that this is not going to slip through the legislature, they are calling it tort reform, when ofcourse, it is no such thing.”

“I can’t think of any lawyer who might be willing to give you a quote supporting bill, ” Jarvis added.

‘Taking on the Trial Lawyers’

But some business groups welcomed the bills.

William Large William W. Large, President of the Florida Justice Reform Institute. Courtesy photo

Calling the proposed changes the most consequential civil litigation reform in a generation, William Large, president ofthe Florida Justice Reform Institute, applauded.

“Governor DeSantis has repeatedly pledged to take on the toughest issues, and he has delivered,” Large said. “Now,with help from the legislature, he’s taking on the trial lawyers in dramatic fashion, and leading Florida towards a morepredictable, stable legal environment that focuses on fairness and personal responsibility.”

John Uustal Founding Partner Kelly Uustal Fort Lauderdale. Credit Kelly Uustal Trial Attorneys

Meanwhile, Fort Lauderdale attorney John Uustal, founding partner with Kelly Uustal, said the proposed changes soundgreat at first, but the bills’ authors need to consider the real-life ramifications if the bills were to have been law when theParkland shooting occurred.

Parkland shooting victims and survivors were among the South Florida residents gathered Thursday in opposition to the proposed changes. They wanted to share their concerns about how they think the bill would affect others like them inthe future, should something like the Marjory Stoneman Douglas massacre happen again.

“It would have destroyed the Parkland families’ ability to hold anyone else accountable,” Uustal said. “It would be a get-out-of-jail-free card for all types of businesses and government entities that violate the law or in other ways commitnegligent acts that result in people getting killed or hurt.”

https://www.law.com/dailybusinessreview/2023/03/03/proposed-florida-laws-are-good-news-for-insurers-as-plaintiff-lawyers-push-back/

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/

House, Senate Diverge on COVID-19 Lawsuit Protection Bills

February 9, 2021/in Law.com

House, Senate Diverge on COVID-19 Lawsuit Protection Bills

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

By Christine Sexton | February 09, 2021 at 12:33 PM

Florida State Capitol building in Tallahassee, Florida.

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, R-St. Petersburg, 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 chief executive officer 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.

https://www.law.com/dailybusinessreview/2021/02/09/house-senate-diverge-on-covid-19-lawsuit-protection-bills/?slreturn=20210110133451

2 South Floridians Are Now Among the Most Powerful Judges in the State, Having Risen to Florida Supreme Court

May 27, 2020/in Law.com

2 South Floridians Are Now Among the Most Powerful Judges in the State, Having Risen to Florida Supreme Court

A South Florida judge and Miami litigator will soon be state Supreme Court Justices.
By Raychel Lean | May 26, 2020 at 02:27 PM

L-R Renatha Francis and John Couriel. Courtesy photos.

Florida Gov. Ron DeSantis appointed two new justices to the state Supreme Court on Tuesday, making commercial litigator John D. Couriel of Kobre & Kim in Miami and Palm Beach Circuit Judge Renatha Francis two of Florida’s most powerful jurists.

The pair will fill vacancies created when Judges Robert Luck and Barbara Lagoa rose to the U.S. Court of Appeals for the Eleventh Circuit.

Francis oversees the family and probate divisions and recently moved from the Miami-Dade Circuit to fill a vacancy following the death of Judge Meenu Sasser. Francis was an attorney at Shutts & Bowen before she rose to county court in 2017. She holds a bachelor’s degree from the University of The West Indies and a law degree from the Florida Coastal School of Law.

At a press conference Tuesday, Francis said she was honored and humbled by the appointment. The jurist was born in Jamaica and raised by a single mother who had no high school diploma.

“From very humble beginnings, standing before you all today, I am truly the epitome of the American dream,” Francis said.

Couriel represents companies in high-stakes cross-borders disputes and, as a Cuban American, uses his native fluency in Spanish to concentrate on Latin America. He’s also served as a federal prosecutor, focusing on cases involving wire fraud, money laundering, health care fraud and other conspiracies.

Couriel obtained his bachelor’s and law degrees from Harvard University, and in 2016 ran as a Republican candidate for the Florida House of Representatives but was defeated by Daisy Baez.

Having worked with Couriel at the U.S. Attorney’s Office for the Southern District of Florida, Wilfredo A. Ferrer of Holland & Knight described him as a devoted family man with an “extraordinary work ethic” and “first-class” analytical mind, who was regularly selected for some of the most complex investigations.

“You should hear him speak about his family. He just lights up,” Ferrer said. “He lends his unselfish support to anybody in need, and that sort of humanity and humility is very important for a judge.”

Ferrer called the appointment good news for Florida’s lawyers, the judiciary and litigants.

“With John, they’re going to get an honest, well thought-out, intellectual and fair process,” Ferrer said. “He’s got the heart and the grit that comes from being the son of immigrants who came to this country with very modest means, but with their hearts filled with hope.”

William Large, president of the Florida Justice Reform Institute, applauded the move, remarking in a press release: ”The governor’s appointments of John Couriel and Renatha Francis as the 90th and 91st justices continue his mission to restore the court to its proper role as the interpreter of our laws, not the author.”

The Cuban American Bar Association also cheered the appointments, nothing that they epitomize its goals.

“Since 1974, the Cuban American Bar Association has worked to promote diversity in the judiciary and legal community,” a CABA press release said. “The appointment of John Couriel and the Honorable Renatha Francis will enhance and promote diversity on the bench.”

https://www.law.com/dailybusinessreview/2020/05/26/2-south-floridians-are-now-among-the-most-powerful-judges-in-the-state-having-risen-to-florida-supreme-court/

Health Care Providers Seek Legal Protections Amid COVID-19

April 24, 2020/in Law.com

Health Care Providers Seek Legal Protections Amid COVID-19

“An executive order is important to send a message to physicians that the state of Florida backs them and respects what they are doing [and] agrees that they should not be sued in the future for any liability issues … for the handling of the COVID-19 crisis,” says William Large, president of the Florida Justice Reform Institute.

By Christine Sexton | April 24, 2020 at 09:45 AM

Florida Justice Reform Institute President William W. Large/courtesy photo

As Gov. Ron DeSantis looks to open the state back up, he is being pushed by health-care providers to shield them from lawsuits stemming from the delivery of care during the COVID-19 pandemic.

The state’s largest physician, hospital and nursing-home associations are asking DeSantis to issue executive orders that would protect their members from lawsuits because of actions that occurred — or didn’t occur — during the crisis. Several groups even provided a fully worded proposal to the governor this week.

DeSantis has remained silent on whether he will follow the lead of other governors who have provided immunity to health-care providers. The governor’s office did not answer questions about the requests.

The Florida Hospital Association and other groups sent a letter Wednesday to DeSantis that voiced worries about potential lawsuits against frontline workers. Among the groups signing onto the letter were the Florida Nurses Association, the Florida Society of Anesthesiologists, the Florida Nurse Practitioners Network, the Florida Chamber of Commerce and Associated Industries of Florida.

“While the battle rages, it is unfortunate, but necessary, that steps be taken to avoid another crisis — a proliferation of inappropriate and unwarranted lawsuits,” the letter said. “In the future, after the current awareness of the incessant harsh realities confronting patients and providers has faded, there may be some who would seek to take advantage of the COVID-19 crisis by suing providers based on applications of standards of care that would fail to account for the special challenges presented by a devastating pandemic.”

The Florida Medical Association, the Florida Osteopathic Medical Association and the Florida Justice Reform Institute last month were the first organizations to formally request protections from medical-malpractice lawsuits for care provided during the COVID-19 crisis.

“An executive order is important to send a message to physicians that the state of Florida backs them and respects what they are doing [and] agrees that they should not be sued in the future for any liability issues … for the handling of the COVID-19 crisis,” said William Large, president of the Florida Justice Reform Institute, which is backed by business groups and lobbies for lawsuit restrictions.

Signed by Large, Florida Medical Association President Ronald Giffler and Florida Osteopathic Medical Association President Eric Goldsmith, a March 26 letter recommended that DeSantis issue an executive order that would limit liability; provide sovereign immunity protections for doctors who were complying with a DeSantis emergency order that shut down optional health-care services; or amend sections of the state’s so-called “Good Samaritan Act” so it would apply to physicians working during the pandemic.

Nursing homes, meanwhile, are seeking protections from cases that can be filed against them for violating nursing-home residents’ rights. The Florida Health Care Association sent a letter to DeSantis 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.

Spokeswoman Kristen Knapp said the nursing-home association has not received a response. DeSantis told reporters last week that, “I think it’s under review. I haven’t made any decisions yet and we’ll look.”

The request remains pending as the number of COVID-19 cases at nursing homes and other long-term care facilities continues to climb. As of Thursday morning, 2,386 COVID-19 cases had been reported involving residents or staff members at 335 long-term care facilities across the state. Those cases had a more than 10% mortality rate.

Agency for Health Care Administration Secretary Mary Mayhew said the state has made “monumental efforts” to help the long-term care industry respond to the virus. Mayhew said last week that the infection prevention and control needed to combat the virus “frankly exceeded the level of infection prevention typically associated with our nursing homes and assisted living facilities.”

The state last week also suspended the licenses of two nursing-home administrators in Jefferson County because of alleged deficient care.

Any attempt to shield nursing homes and other providers from lawsuits, however, likely will face fierce opposition from groups such as plaintiffs’ attorneys. Jacksonville attorney Steve Watrel said now is not the time to grant broad immunity.

“The court system exists for a reason,” Watrel said. “The court system exists to ferret out meritorious from non-meritorious claims. And broad brushes of immunity are not only not appropriate right now but would lead to an increase of injury and death. Because, unfortunately, the reality of human nature is, without the threat of accountability, responsibility dwindles.”

Knapp said nursing homes have been receiving “conflicting guidance from federal, state and local government entities” and that COVID-19 has required facilities to take actions they ordinarily would not take. For instance, Knapps said homes in Broward County are being told by local health department officials to keep residents in their rooms with doors closed, which would “be a violation of health care standards on a normal day.”

“In the midst of this unprecedented crisis, long term caregivers should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making these types of tough decisions while trying to comply with government directives,” she said in a statement to The News Service of Florida.

Some other states have provided legal protections for care provided during the pandemic. For example, governors in Arkansas, Arizona, Connecticut, Illinois, Kentucky, Massachusetts, New Hampshire, Nevada, New York, Vermont and Wisconsin have issued orders protecting physicians from lawsuits, according to the American Medical Association.

Knapp said governors in Arkansas, Arizona, Connecticut, Georgia, Hawaii, Illinois, Michigan, New Jersey, New York, Rhode Island and Wisconsin issued executive orders limiting lawsuits against nursing homes. Also, lawmakers in New York, New Jersey and Kentucky passed legislation, she said

But shielding doctors, hospitals and nursing homes from lawsuits has long been a controversial issue in Florida, with the issue flaring again in recent years.

Interest in medical-malpractice protections was refueled by Florida Supreme Court rulings in 2014 and 2017 that struck down limits on non-economic damages in malpractice lawsuits.

The state House considered a far-reaching malpractice bill in 2019 that would have addressed the court rulings. But the proposal cleared only one panel in the House and never was considered by the Senate.

Jacksonville attorney Chris Nuland, who lobbies for physician groups, said other issues, such as expanded practice authority for pharmacists and advanced practice registered nurses, dominated his time during the 2020 session. Changes to the malpractice system were “out there on the scene, although no one really went after it this year,” he said.

Leading up to the pandemic, the state’s medical-malpractice insurance market was profitable and stable. Florida ranked fourth in the nation in terms of premiums written with roughly $562 million in 2018, according to a Florida Office of Insurance Regulation report.

Sixty-five percent of the premiums, the report shows, came from physicians’ policies. On average, the report noted, medical malpractice rates increased for physicians by 3.5 percent.

The last time the Legislature delved into nursing home lawsuits was 2014, when it agreed to pass legislation that prevented “passive” investors from being named as defendants in cases related to injuries suffered by nursing-home residents. The bill also made it harder to sue nursing homes for punitive damages, requiring courts to hold evidentiary hearings before residents could pursue punitive-damage claims.

Christine Sexton reports for the News Service of Florida.

https://www.google.com/url?rct=j&sa=t&url=https://www.law.com/dailybusinessreview/2020/04/24/health-care-providers-seek-legal-protections-amid-covid-19/&ct=ga&cd=CAEYASoUMTgzMTkyMDg5MDAxNTAxOTAxNzgyGmZiNGYxNjZmYjY5NjFhZjk6Y29tOmVuOlVT&usg=AFQjCNGxhbuaOTy9vB4M8z_f-daz-4uoSA

Dan Packel – November 02, 2023 at 06:12 PM

Florida Justice Reform Institute

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