Florida lawmakers have divided the question of COVID-19 liability protections into several different proposals, and the first bills protecting against fraud and the other for businesses, recently rolled out. A third dealing with healthcare is expected soon. At issue is an effort to give business, and providers some comfort with operating in a pandemic, while balancing consumer rights.
House Bill 7 is the first legislative bill to get moving ahead of the March legislative session. It’s a priority for nearly every state leader, as it involves trying to curb frivolous COVID 19 lawsuits against businesses trying to operate in the middle of a pandemic. Rep. Lawrence McClure (R-Plant City) is the bill sponsor.
"This bill aims to reduce the threat of potential civil liability for COVID-19 related claims. House Bill 7 will protect business entities, educational institutions, religious institutions, and governmental entities acting in good faith.," said McClure.
If the legislation becomes law, a person filing a lawsuit against a business over COVID-19 would go through a pre-trial process where a judge would determine whether a plaintiff’s lawsuit meets certain requirements. Robert Shimberg chairs the COVID-19 Rapid Response Team at Hill, Ward, Henderson Law Firm located in Tampa. He explains those requirements.
"Number 1 they have to plead the facts with particularity, with some specificity. And then the law says that they also must submit an affidavit by a doctor licensed in the state of Florida," said Shimberg. "And the affidavit has to have the doctor’s belief within what they call a reasonable degree of medical certainty that the damages that are claimed, the COVID-related damages or injury or death that the doctor’s belief is that it was a result of the defendants of let’s say the businesses acts or their omissions."
That affidavit language is causing debate. Opponents say it’s nearly impossible for someone to track down the specific location where they contracted COVID-19. And Curry Pajcic, Treasurer of the Florida Justice Association, and a trial lawyer says it’s also highly unlikely a doctor would be able to sign an affidavit like the one described.
"A physician cannot give an opinion that the bad restaurants, their actions caused someone to get covid. A doctor can’t give that," said Pajcic. "They can say the person has COVID or around about when they got it but they can’t say the actions caused it."
Rep. Ben Diamond (D-St. Petersburg) takes issue with bypassing juries and going straight to judges.
"I’m concerned about the fact that the court is making a determination that in our system of justice is really a jury’s call," said Diamond. "Whether the defendant, whether a business did something right or wrong in terms of complying with the standard, made a good faith effort that’s a question that you put to a jury under our civil justice system."
McClure says he’ll work with opponents to find a compromise.
Meanwhile, a separate, soon-to-be-filed bill tackles the question of lawsuit immunity for healthcare providers.
They too are worried about lawsuits--not by someone who may claim they contracted coronavirus at their business--but rather those who may have needed medical care but stayed home and didn’t get it. Coral Springs physician Jason Goldman explained the situation recently during a legislative Health & Human Services Committee.
"When the Governor issued executive orders and closed down all elective procedures it put the patients at risk for other conditions even though we were trying to stop the spread of the pandemic," said Goldman.
Goldman worries that could come back to providers.
"What I’m seeing months later is diagnosis for cancer and other conditions that had to be delayed for obvious reasons," said Goldman. "I’m worried about the liability that they are going to now claim it was a delay in their cancer diagnosis."
There’s an argument that pre-suit requirements for medical-malpractice claims currently in place should be all the protection providers need, but the industry is worried. It’s also concerned about lawsuits against long-term care facilities like nursing homes, where the virus has killed large numbers of people.
Sen. Jeff Brandes (R-St. Petersburg) says a bill is in the works now dealing with healthcare covid liability.
A third proposal, House Bill 9, advanced in its first hearing recently. It’s aimed at cracking down on fraudsters using the pandemic as cover for scams. The legislation would allow the Attorney General to remove phony healthcare websites made to trick victims into paying for COVID-19 vaccine appointments that never happen.
Rep. Ardian Zika (R-Land O' Lakes) is the bill sponsor.
"Recently the federal, state, and local officials have warned Florida consumers to be careful of offers to get special access to the COVID-19 vaccine in exchange for money," said Zika. "They often use, these fraudsters, authentic-looking but fake websites to lure unsuspecting consumers into paying for vaccines or appointments that never materialize."
So far, the state has found fake duplicates of both Pasco and Pinellas County health departments' web pages. If caught a person would receive a third-degree felony for their first attempt. Future attempts would raise the felony to a second degree.
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