On March 29, 2021, Florida Governor Ron DeSantis signed the “Civil Liability for Damages Related to COVID-19 Act” into law. The Act was designed to shield businesses from COVID-19 liability claims, and includes a specific section dedicated to protecting healthcare providers. While the protections for healthcare providers are not as robust as those granted to other businesses, the immunity provided by the law (Florida Statutes s768.381) is significant.
The protections apply to virtually all Florida healthcare providers, regardless of whether they are individuals, agencies, or facilities; and cover all “COVID-19 related claims.” The types of claims covered are those arising from:
– Diagnosis or treatment of a person for COVID-19, or the failure to do so;
– Provision of a novel/experimental COVID-19 treatment;
– Transmission of COVID-19;
– Delay or cancellation of a surgery, procedure, test or appointment due to a provider’s interpretation of government-issued standards or authoritative guidance relating to COVID-19;
– Acts or omissions related to an emergency medical condition which are attributed to a lack of resources directly caused by the pandemic; or
– Treatment provided to a Patient who has COVID-19 and suffers an exacerbation of a pre-existing condition due to COVID-19.
The new requirements for these types of claims are:
– Plaintiffs must plead their cases with particularity, or risk dismissal. This is a higher standard than a typical malpractice claim.
– Plaintiffs must prove gross negligence or intentional misconduct in order to prevail. Proving simple negligence, which is the typical standard in a typical malpractice claim, is not sufficient. Note that unlike a malpractice claim, no expert opinion is required from the plaintiff in order to bring the claim. Of course, expert testimony will still be anticipated at trial.
– Healthcare providers are also afforded a number of affirmative defenses to a claim. If a provider can demonstrate (i) substantial compliance with government-issued standards or standard infectious disease practices: or (ii) an inability to comply with the appropriate standards because of medical supply shortages, the provider can avoid liability.
The statute of limitations for a COVID-19 related claim is just one year, which is a significant reduction in the amount of time in which a claim can be brought. The law applies retroactively, but prospectively it is limited to claims that arise within one year of the law’s effective date. So without additional legislative action, claims that arise after March 2022 will not be subject to the provisions of the law. Claims that arose before that date, but for which a claim has not been filed will be subject to dismissal.
This law is too new to have any record of it being used in litigation yet, but it will be interesting to monitor. However, these protections should be a useful resource to protect healthcare providers from claims arising from actions taken in the midst of the uncertainties created by the pandemic.