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Thursday, April 1, 2021

Fowler White Client Alert: New Bill Immunizes Certain Businesses and Health Care Providers From Unfounded Lawsuits Based on COVID-19-Related Claims

By: Lindsay M. Massillon and Tamara R. Pallas

New Bill Immunizes Certain Businesses and Health Care Providers From Unfounded Lawsuits Based on COVID-19-Related Claims

The new law, effective March 29, 2021, establishes new standards for complaints alleging damages, injury, or death which arise from or relate to COVID-19. Noting the potential uptick in lawsuits filed against businesses recovering from the effects of the pandemic, the law's purpose is to "deter unfounded lawsuits against individuals, businesses, health care providers and other entities." The new law seeks to ensure that health care providers are not chilled by potential litigation and instead remain "focused on serving the health care needs of their respective communities." The protections offered by the new law also bring Florida closer to redeveloping the "strong and vibrant" economy we desperately need. 

The bill (SB 72) adds two new sections to Chapter 768, Florida Statutes. The first addition is Section 768.38. This statute applies to businesses, educational institutions, governmental entities, and religious institutions. It also applies to health care providers, but only if the claim is excluded from Section 768.381 (see below). Section 768.38 requires plaintiffs to plead COVID-19-related claims "with particularity," and, concurrent with the filing of the complaint, submit an affidavit signed by a physician "which attests to the physician's belief . . . that the plaintiff's COVID-19-related damages, injury, or death occurred as a result of the defendant's acts or omissions." Any action which does not strictly adhere to these two requirements must be dismissed by the court without prejudice. The court must also determine whether the defendant made a "good faith effort to substantially comply" with government-issued health standards or guidance. The burden of proof remains on the plaintiff to show that the defendant did not make a good faith effort—as opposed to forcing the defendant to raise good faith as a defense.

If the court finds that the defendant made a good faith effort to substantially comply with government-issued health standards or guidance, the defendant is immune from civil liability. In the absence of a finding of good faith, a plaintiff may proceed but will still have to demonstrate gross negligence in order to hold the defendant liable for a COVID-19-related claim. The statute of limitations for such claims is limited to one year from the date the cause of action accrues, or March 29, 2022 for actions which accrued before March 29, 2021.
        
Claims Against Health Care Providers
For COVID-19-related actions against health care providers, newly created Section 768.381 protects against claims for diagnoses or treatment of, or failure to diagnose or treat COVID-19; transmission of COVID-19, delay or cancellation of a surgery, medical procedure, test, or appointment because of health standards, emergency medical issues resulting from lack of resources due to COVID-19, and treatment of medical issues exacerbated by COVID-19. Plaintiffs alleging claims against health care providers must also plead with particularity—or face mandatory dismissal. Additionally, plaintiffs alleging COVID-19-related claims against health care providers must prove by the greater weight of the evidence that the provider was grossly negligent or engaged in intentional misconduct in order to hold the provider liable. The statute provides for affirmative defenses, including: substantial compliance with government-issued health standards relating to COVID-19 or infectious diseases; impossibility of substantial compliance with COVID-19 standards due to shortages of supplies, materials, equipment or personnel; among others.

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