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Florida House, Senate Unveil COVID-19 Business Protections

Neither chamber's measure contains lawsuit protections for health care providers, but Sen. Jeff Brandes, who sponsored the Senate version, says they will addressed in separate legislation.

The Republican-led Legislature appears ready to fast-track a proposal that would provide immunity from coronavirus-related lawsuits to businesses that have “substantially” complied with public health guidelines.

The House and Senate on Wednesday released identical bills for consideration during the 2021 legislative session, which will start March 2.

Neither the House bill (HB 7) nor the Senate measure (SB 72) contains lawsuit protections for health care providers, which makes some health care lobbyists uneasy.

But physicians, nursing homes and other facilities aren’t being ignored, said Senate Judiciary Chairman Jeff Brandes, a St. Petersburg Republican who is sponsoring the Senate version. He said health care providers will be handled in separate, yet-to-be released legislation.

"There is an incredible amount of detail that needs to go into the health care issue, and that needs to take a little more time,” Brandes said, noting he was confident that the Legislature would ensure health care providers receive protections from lawsuits during this year’s session. “I can’t see Gov. (Ron) DeSantis allowing the Legislature to adjourn without a sufficiently strong health care liability legislation.”

But Jacksonville health care attorney Chris Nuland, a seasoned lobbyist, doesn’t like the bifurcated approach. Nuland represents a bevy of physician specialty groups including the Florida Chapter of the American College of Surgeons, the Florida Society of Dermatology & Dermatologic Surgery and the Florida Society of Thoracic and Cardiovascular Surgeons.

“Liability protection for health care workers should be a priority that should be the centerpiece of any larger liability protection package,” Nuland said in a statement to The News Service of Florida. “These heroes have put themselves in harm's way for almost a full year to protect the health of our citizens. To place them in legal jeopardy for their sacrifice is inexcusable, and the Legislature should address that injustice immediately."

Attempts to contact the Florida Hospital Association and the Florida Health Care Association, the largest statewide nursing home group, were not immediately successful.

But prominent Orlando plaintiffs’ attorney John Morgan blasted the possibility of providing additional legal protections to nursing homes, where thousands of residents have died because of COVID-19, the disease caused by the coronavirus

"We now know nursing homes are murder factories. Half of the deaths are there because they are filthy,” Morgan said. “Tort reform has made it already impossible to sue them. Cameras should be in every room. We have cameras on our dogs at the vet.”

Physicians, hospitals and nursing homes were among the first to call for lawsuit protections during the pandemic. The leaders of the Florida Medical Association and the Florida Osteopathic Medical Association sent a letter to DeSantis in the spring recommending that the governor issue an executive order that would limit liability; provide sovereign immunity protections for doctors who complied 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.

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.

The newly filed bills would provide businesses, schools and churches protection from COVID-19 related lawsuits for damages, injuries or deaths. The bills would require plaintiffs to file claims within one year after incidents. They would be required to obtain affidavits from Florida physicians attesting that the defendants’ acts or omissions caused the damages, injuries or deaths.

Businesses that courts deem have “substantially” complied with government-issued health standards or guidance would be immune from liability.

The bills also would make it harder to win lawsuits, raising the bar of proof from simple negligence to gross negligence and upping evidentiary standards from the current “greater weight of the evidence” to “clear and convincing evidence.”

The House Civil Justice & Property Rights Subcommittee is scheduled to vote on the House bill when it meets next week. The House Health & Human Services Committee will hold a workshop next week on health care-related liability issues

NFIB Florida Executive Director Bill Herrle said his principal concern is front line non-health care businesses and that the new bills would provide protections to the “bulk of the businesses out there that have been operating every day since COVID started.”

If signed into law, the proposal would apply retroactively. Additionally, the changes would remain in effect permanently.

Brandes said he worked with many groups over the last several months but not plaintiffs’ attorneys who have criticized business groups for pushing the lawsuit limits.

“If you look up in the sky in Florida, you see the sun and a billboard advertising an attorney,” Brandes said. “So there is no restriction to access to the courts if they have the resources to stick a billboard every 30 feet in Florida.”

News Service senior writer Dara Kam contributed to this report.

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