Christine Jordan Sexton
A Senate panel on Tuesday voted to introduce a committee bill to extend COVID-19 liability protections for nursing homes, hospitals and physicians until June 1, 2023, a tacit acknowledgment that the COVID-19 pandemic remains a concern.
Senate Judiciary Committee Chairman Danny Burgess, the sponsor of the proposed bill, said he did not have any data on the number of COVID-19 related lawsuits that had been filed.
“I don’t have a stack of data one way or the other, but I think us getting out on this early helped to mitigate what might have been coming down the pike,” he said, answering a question from Democratic Sen. Daryl Rousson of St. Petersburg.
The June 1, 2023, expiration date for the enhanced legal protections aligns with the sunset date included in other recently enacted laws relating to COVID-19. That includes one law that bans Florida employers from requiring their staff to get vaccinated without giving employees at least five different avenues to opt out.
“I am big on consistency,” Burgess said, explaining the sunset date.
The current law that shields businesses and health care providers from COVID-19-related lawsuits was one of the first measures passed by the Legislature during the 2021 Session.
The law makes clear that to successfully sue a health care provider for COVID-19, the plaintiff must prove gross negligence or intentional misconduct. While general businesses were provided indefinite immunity liability protections, health care providers were afforded such protection only through March 2022.
House Speaker Chris Sprowls pushed for the limit on health care-related lawsuits. But as of publication, no House companion bill has been filed extending the liability protections.
Since the start of the pandemic, 61,147 Florida residents have died from COVID-19, according to data current through Nov. 27.
Miami personal injury lawyer Stephen Cain said the lawsuit protections aren’t necessary given the state’s position on other public health issues related to COVID-19.
“Florida is open for business. I understand that we still have COVID out there. But facilities — nursing homes, ALFs, hospitals — should be held accountable for following appropriate infection control policies. This disincentivizes health care providers from doing the things that are necessary to help us in this pandemic,” said Cain, a partner with Stewart Tilghman Fox Bianchi & Cain, P.A., who testified on behalf of the Florida Justice Association.
“We are back to business as normal. We shouldn’t be insulating health care providers by allowing this extension of immunity.”
Defense lawyer Robin Khanal told members of the Senate Judiciary Committee that the protections they passed earlier this year have been effective in reducing litigation. But Khanal, a partner at Quintairos, Prieto, Wood & Boyer, P.A., could not say how many lawsuits had been filed against Florida businesses.
Khanal told senators that before the 2021 law taking effect, there was a “rush to the courthouse to get lawsuits filed” because the 2021 law did not apply to lawsuits that had already “commenced.” He currently is in “active litigation” over whether the term “commenced” includes cases where notices of intent were filed or whether it only applies to cases that have been filed with the court.
The bill is a tacit acknowledgment that the COVID-19 pandemic remains an ongoing concern even as legislators and Gov. Ron DeSantis have pushed laws and policies designed to keep businesses and local governments from imposing mandates and lockdowns.
“I think it shows that the pandemic is still quite a problem — which is why we are extending it another 14 months — which I think sort of flies in the face of what happened here two weeks ago,” said state Sen. Tina Polsky, referring to the Special Session DeSantis called to ban vaccine mandates.
But Burgess denied that was the case.
“Litigation survives incident and that’s why this is necessary,” Burgess said. “It is not out of politics. It’s out of public necessity,” he said.
