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Shortly after the introduction of the COVID-19 general liability bill, (HB 7 and SB 72) in an effort to protect businesses from frivolous lawsuits, Senate Judiciary Chairman Jeff Brandes of St. Petersburg introduced Senate Bill 74, COVID-19-related Claims Against Health Care Providers, which creates an extension of broad immunity to hospitals, physicians and facilities from coronavirus lawsuits.  The proposed legislation is a reaction to the COVID-19 general liability bill, which specifically excludes the health care industry.  Other states have introduced similar legislation extending immunity provisions to health care workers and facilities.  However, a point of contention for the newly introduced legislation is the accountability of nursing homes which are widespread throughout Florida.  

Senate Bill 74 (SB 74) was introduced on February 3, 2021 and quickly moved through a Florida Senate committee, despite warnings from opponents that the legislation could hinder people from pursing legitimate claims against medical providers.  The Senate Judiciary Committee voted 6-4 to advance the bill, which is anticipated to be a top priority for legislators during session. 

Despite the popularity of the COVID-19 general liability bill, Senate Bill 74 has generated greater criticism and opposition out of concerns that Florida citizens with legitimate health care claims may struggle to bring such claims because of additional restrictions and procedural barriers.  Supporters of the bill, including health care providers and facilities, are urging lawmakers to pass the bill so they can continue providing services to the community without the fear of frivolous lawsuits.  Critics of the bill believe nursing homes and health care workers should be held to a higher standard and need to be accountable if they are not taking the appropriate measures to handle situations such as the pandemic. 

The statutory components of the bill are similar to the COVID-19 general liability bill, with one major caveat, the requirement of an affidavit from a physician. Senate Bill 74 outlining COVID-19 related claims against health care providers creates Sec. 768.381, Florida Statutes, which defines the terms of the statute; provides preliminary procedures for civil actions based on COVID-19 related claims; provides the standard of proof required for trial for such claims; provides immunity from liability under certain circumstances; and requires COVID-19 related claims to be commenced within a specific timeframe.

The bill outlines the general progression of the COVID-19 virus and precautions taken by the State of Florida.  In order to bring forth a claim under the proposed legislation, a claimant must be able to show “(1) the health care provider failed to follow clinical authoritative or government-issued health standards or guidance relating to COVID-19; (2) the health care provider failed to properly interpret or apply the standards or guidance with respect to the provision of health care or related services, or lack thereof, or the allocation of scarce resources, or assistance with daily living; (3) the health care provider was negligent in the provision of a novel or experimental COVID-19 treatment; or (4) in the absence of applicable standards and guidance specific to COVID-19, the health care provider failed to follow clinical authoritative or government-issued health standards or guidance relating to infectious diseases in preventing the transmission of COVID-19 or in diagnosing or treating a person for COVID-19.” See SB 74.  The government issued health standards include those issued by federal, state and local governments.

According to the proposed bill, the complaint must be pled with particularity by alleging facts in sufficient detail to support each element of the claim.  If the complaint is not pled with particularity, the claim should be dismissed.  Unlike the COVID-19 general liability bill, there is no requirement to provide an affidavit from a physician as part of the pleadings and the standard of proof is to show by the greater weight of the evidence that the health care provider was grossly negligent or engaged in intentional misconduct.  Gross negligence is identified as “(a) failing to substantially follow authoritative or applicable government-issued health standards or guidance relating to COVID-19; (b) in interpreting or applying the standards or guidance with respect to the provision of health care or related services, or lack thereof, or the allocation of scarce resources or assistance with daily living; or (c) in the provision of a novel or experimental COVID-19 treatment.”  See SB 74. 

The proposed legislation goes on to state a health care provider is immune from such liability if supplies, materials, equipment, or personnel necessary to comply with the government issued health standards or guidance were not readily available or were not available at a reasonable cost.  The claimant has one year after the later of the date of death, hospitalization or the first diagnosis to file a claim.  If a claimant’s cause of action accrued before the effective date of the legislation, then the statute of limitations begins on the date the legislation becomes effective and the bill applies retroactively.

During recent committee meetings, opponents requested several revisions of the proposed legislation, focusing on narrowing the scope of the term “health care providers” and pushing for an easier standard than “gross negligence.” See SB 74.  Although these revisions were denied, Senator Brandes indicated a willingness to refine the language, without providing any specifics.  It is anticipated the bill will go through several additional committee meetings and will be met with continued contention before to potentially being passed.  The House Health & Human Services Committee will consider its own version of the bill.