DESANTIS STAYS QUIET ON LIABILITY ISSUES
July 21, 2020 – Christine Sexton

TALLAHASSEE — Twenty-one Republican governors sent a letter this week to congressional leaders arguing that businesses, health care workers and schools need lawsuit protections because of the COVID-19 pandemic, but Florida Gov. Ron DeSantis did not sign on.

Congress is considering another COVID-19 relief package, and many Republicans contend that liability protections need to be part of any legislation that is ultimately passed and sent to President Donald Trump.

“To accelerate reopening our economies as quickly and as safely as possible, we must allow citizens to get back to their livelihoods and make a living for their families without the threat of frivolous lawsuits,” the letter to House Speaker Nancy Pelosi, House Minority Leader Kevin McCarthy, Senate Majority Leader Mitch McConnell and Senate Minority Leader Charles Schumer said. “As public policymakers, it is our duty to provide clarity, consistency, and stability to our citizens and their businesses, and the uniformity that federal law provides is critical to America’s industries that work across state lines.”

DeSantis’ office didn’t immediately respond to The News Service of Florida’s request for comment or explain why he didn’t sign onto the document, which was touted by the Republican Governors Association. DeSantis was one of five Republican governors who did not sign on to the request, along with the governors of Georgia, Massachusetts, South Dakota and Vermont.

It wasn’t the first time that DeSantis, who is an attorney, has been mum on the issue of lawsuit protections.

DeSantis received letters in April from associations representing hospitals and nursing homes asking him to issue an executive order protecting their members from liability amid the pandemic. The Florida Health Care Association, the state’s largest nursing-home association, sent a letter to DeSantis on April 3 requesting he provide nursing homes with civil and criminal protections, including safeguards from suits stemming from staffing or resource shortages.

Florida Health Care Association spokeswoman Kristen Knapp on Tuesday declined to comment on this week’s letter. “We’re going to keep our focus on ensuring our facilities have the resources they need to keep their residents safe and protected right now,” Knapp said in an emailed statement to the News Service.

The Florida Hospital Association sent a similar letter to DeSantis on April 22 requesting that he temporarily provide legal protections to hospitals. The association proposed that the protections from civil and criminal suits last through Oct. 1. Attempts to contact the hospital association Tuesday were not immediately successful.

The first groups to ask DeSantis for protections amid the pandemic were doctors. The Florida Medical Association and the Florida Osteopathic Medical Association joined with the Florida Justice Reform Institute, an organization that focuses on lawsuit limits, and asked DeSantis in March to issue an executive order limiting liability and providing sovereign immunity protections for doctors who were complying with emergency orders that shut down optional health-care services. The letter also asked DeSantis to extend the state’s “Good Samaritan Act” to apply to physicians working during the pandemic.

DeSantis did not issue any of the requested executive orders and avoided answering media questions about the requests.

Attempts to limit lawsuits — an issue commonly known as tort reform — often spur fierce political battles in Tallahassee, with plaintiffs’ attorneys squaring off against business and health-care groups. Opponents of such limits generally contend that they penalize people who are injured because of the actions of businesses or health-care providers.

Despite DeSantis’ lack of action on the issue during the pandemic, Florida Justice Reform Institute President William Large said Tuesday that legal protections still are necessary. 

In part, Large said a timeframe people have to file lawsuits against businesses or health care providers should be shortened from the current four years to one year. Large also said evidentiary standards and culpability standards also need to be heightened to provide protections businesses need.

While DeSantis didn’t approve the requests, Large said he remains optimistic that the governor supports lawsuit protections.

“The first opportunity the Legislature addresses any subject dealing with COVID-19, such as the budget, we will ask for appropriate liability (protections) ” Large said.  

https://newsserviceflorida.com/app/post.cfm?postID=37479 

Health Care Providers Seek Legal Protections

April 23, 2020 – Christine Sexton

TALLAHASSEE — 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 percent 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.

https://newsserviceflorida.com/app/post.cfm?postID=36424 

Jim Saunders – May 23, 2019

2019 The News Service of Florida. All rights reserved; see terms.

TALLAHASSEE — In a move that left little doubt about the new direction of the Florida Supreme Court, justices on Thursday reversed a controversial 2017 decision about the testimony of expert witnesses in lawsuits.

While drawing relatively little public attention, the expert-witness issue has been a political battleground for business groups and plaintiffs’ attorneys. The ruling Thursday effectively sided with the position of business groups and Republican lawmakers — and cemented that the newly revamped Supreme Court is willing to reverse course on past decisions.

After taking office in January, Republican Gov. Ron DeSantis appointed justices Barbara Lagoa, Robert Luck and Carlos Muniz to replace longtime justices Barbara Pariente, R. Fred Lewis and Peggy Quince, who were forced to leave because of a mandatory retirement age. The appointments have turned what was widely viewed as a liberal court into a conservative court.

The 5-2 ruling Thursday was rooted, at least in part, in a 2013 law approved by the GOP-controlled Legislature and then-Gov. Rick Scott. The business-backed law tightened a standard for expert witnesses, whose testimony can play a pivotal role in complicated civil and criminal cases.

Supporters of the 2013 law argued that the state needed to prevent testimony that is “junk science.” Lawmakers decided to move to what is known in the legal world as the “Daubert” standard, which is more-restrictive than the state’s longstanding expert-witness standard, known as the “Frye” standard. Federal courts use the Daubert standard, but opponents of using it in Florida courts said it would make cases more expensive and time-consuming.

In 2017, however, the Supreme Court, which has the power to set court procedures, blocked the move to the Daubert standard. The majority in that 4-2 decision — Pariente, Lewis, Quince and Justice Jorge Labarga — pointed to “grave constitutional concerns” about the Legislature’s effort to change the standard. Dissenting in the case were justices Charles Canady and Ricky Polston.

On Thursday, however, Canady, Polston, Lagoa, Muniz and Justice Alan Lawson made up a majority that said it had decided to “recede” from the earlier decision. As a basis, it pointed to “this court’s exclusive rule-making authority and longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature.”

“Whereas the Frye standard only applied to expert testimony based on new or novel scientific techniques and general acceptance, Daubert provides that ‘the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable,’ ” the opinion said. “Moreover … the Daubert amendments will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.”

But Labarga, in a dissent, pointed to recommendations from a Florida Bar committee that played a role in the Supreme Court’s 2017 decision to not change the standards.

“I agree with the committee that the Daubert amendments create a significant risk of usurping the jury’s role by authorizing judges to exclude from consideration the legitimate but competing opinion testimony of experts,” Labarga wrote. “Where evidence is not based upon new or novel science, juries should be permitted to hear the testimony of experts, evaluate their credibility, and analyze and weigh their opinions and conclusions to reach a just determination on the issues presented by the case.”

Luck, one of the DeSantis appointees, also dissented, saying the Supreme Court did not follow its procedures before issuing the decision Thursday. Those procedures involve committees and The Florida Bar Board of Governors studying proposed court rule changes and making recommendations.

“Because we established mandatory procedures for exercising our rulemaking authority (under part of the Florida Constitution), we are as required to follow them as everyone else,” Luck wrote. “There is no exception for administrative ease, and there is no proviso for we’ve-heard-it-all-before.”

Since DeSantis appointed the new justices, speculation has swirled about issues that the court could address — and possibly revisit. The News Service of Florida reported this week, for example, that justices are weighing whether to undo a major 2016 ruling in death-penalty cases.

William Large, president of the Florida Justice Reform Institute, a group that lobbied for the 2013 expert-witnesses law, pointed to potentially far-reaching ramifications of Thursday’s decision.

“The Florida legislature passed the Daubert expert evidence standard in 2013, but a previous majority of the Florida Supreme Court refused to acknowledge that change,” Large said. “The court’s decision today to finally adopt the Daubert standard will change the face of Florida jurisprudence.”

• https://www.newsserviceflorida.com/archives/supreme-court-reverses-course-on-expert-witnesses/article_b62f8498-1cbc-581a-a417-b495e5fb94b2.html

Christine Sexton –  Jan 17, 2019

TALLAHASSEE — The appointment of two new Florida Supreme Court justices has galvanized the business community’s interest in tackling attorney fees in the workers’ compensation insurance system.

Bill Herrle, executive director of the National Federation of Independent Business in Florida, has since 2016 called for the Legislature to limit what plaintiffs’ attorneys can charge injured workers.

He acknowledged that the issue has been thwarted by lawmakers’ reluctance to pass fee caps because of fears that such limits could be struck down by the Supreme Court.

But with the forced retirement last week of three Supreme Court justices and Gov. Ron DeSantis’ choice of replacements, Herrle thinks the chances to impose fee caps have increased.

“It has emboldened the Legislature and put some starch in their shorts,” Herrle said of lawmakers’ willingness to address the issue during the 2019 session, which starts March 5.

The House Insurance & Banking Subcommittee will examine workers’ compensation issues, including litigation and attorney-fee issues, when it meets Tuesday in Tallahassee.

Workers’ compensation is a no-fault system meant to protect workers and employers. It is supposed to provide workers who are injured on the job access to medical benefits they need to be made whole. In exchange for providing those benefits, employers generally cannot be sued in court for causing injuries.

But workers’ compensation also is one of the most divisive issues in Tallahassee because of the breadth of its impact, touching disparate interests including injured workers, employers, health-care providers, insurance companies and workers’ attorneys.

While the system is generally set up to avoid lawsuits, disputes about benefits often lead to legal fights. If lawmakers move forward with trying to limit attorney fees, they likely will meet opposition from groups such as the Florida Justice Association, which represents plaintiffs’ attorneys.

Opponents of fee caps say lawmakers should focus, in part, on issues such as the adequacy of benefits for injured workers and allowing more choice in health-care providers. Business and insurance groups contend that attorney fees drive up workers’ compensation costs.

But a push for changes during the 2019 session will come on the heels of rate decreases. Florida Insurance Commissioner David Altmaier approved an overall 13.8 percent decrease in workers’ compensation insurance rates for 2019 and a nearly 10 percent reduction in rates for 2018.

The rates were reduced despite warnings from business groups and insurers that a 2016 Supreme Court ruling that tossed out restrictive fee caps would lead to an increase in litigation and skyrocketing rates.

The 2016 ruling, by a 5-2 majority of the court, said that fee caps put into place in 2003 and adjusted in 2009 were unconstitutional. While regulators approved rate decreases for 2018 and 2019, they approved a 14.5 percent increase in 2016 that was largely an outgrowth of the Supreme Court ruling.

Four of the justices who struck down the fee caps are no longer on the court. The opinion was written by former Justice Barbara Pariente, who along with justices R. Fred Lewis and Peggy Quince, retired Jan. 8 because of a mandatory retirement age.

DeSantis, who took office Jan. 8, has filled two of the three vacancies, appointing former appellate judges Robert J. Luck and Barbara Lagoa. The new justices have drawn praise from conservative groups such as the Florida Justice Reform Institute, whose president, William Large, praised DeSantis for his “commitment to setting a new course for our Florida Supreme Court.”

The appointments take the Supreme Court in a more conservative direction and breathe life into the business community’s push for the Legislature to reinstate fee caps.

“Just the Legislature knowing that they have a fresh bench to look at their work, I think, is worth a few votes,” Herrle said.

House Speaker Jose Oliva told The News Service of Florida recently that he’s not keen on controlling what people can charge for their services, saying he would “much rather focus my attention on creating the health of an environment rather than trying — through decree — to make it what I wish it was. “

But Oliva, R-Miami Lakes, said the House would examine workers’ compensation, acknowledging that it exists “a little in its own space.”

Senate President Bill Galvano, R-Bradenton, also has expressed support for addressing workers’ compensation this session.

https://www.newsserviceflorida.com/archives/new-justices-could-refuel-workers-comp-fight/article_f0f238bb-71c7-5522-8cd2-f0f06feeb58b.html