Megan J. Nelson

Key Points:

• Florida Statute 768.38 and Florida Statute 768.381 offer liability protection for health care providers against claims related to COVID-19.
• In order for the immunity to apply to a health care provider, the complaint must state the damages, injuries or death were related to COVID-19.
• An affirmative defense that may apply to COVID-19-related claims against a health care provider is substantial compliance with government-issued health standards specifically related to COVID-19 when the injury occurred.

The coronavirus was first detected in Florida on March 1, 2020, and from its start, health care providers and facilities have been overrun with sick patients and limited supplies. At the beginning of the pandemic, multiple health care organizations provided guidance on how to properly manage patients during the crisis. Hospitals, nursing homes, assisted living facilities, and doctor’s offices were running low on supplies, and many patients were dying from COVID-19. More than a year has passed since the pandemic began, and Florida is being overrun with lawsuits against health care providers and facilities for claims associated to damages, injuries and deaths related to COVID-19. On March 29, 2021, Florida Governor, Ron DeSantis, signed CS/SB into law, creating Florida Statute 768.38 and Florida Statute 768.381, which offer liability protection for health care providers against claims related to COVID-19.

Florida Statute 768.381 provides liability protection for health care providers, including hospitals, nursing homes and assisted living facilities, against claims brought by a patient (or legal representative) related to damages, injuries or death due to COVID-19.

The liability protection for COVID-19-related claims against a health care provider mainly relates to claims arising from the diagnosis or treatment of a person for COVID-19, the provision of a novel or experimental COVID-19 treatment, the transmission of COVID-19, and the delay or cancellation of a surgery or medical procedure.

The new law will apply retroactively. A plaintiff will have one year from the time the injury related to COVID-19 occurred to bring a lawsuit. However, if a lawsuit for a cause of action related to COVID-19 were filed before March 29, 2021, the liability protection would not apply.

A plaintiff will still be required to participate in Chapter 766 pre-suit investigation. The liability protection will not be addressed until a complaint has been filed. For the liability protection to apply to a health care provider, the complaint must be pled with particularity. Meaning, the complaint must state that the damage, injury or death was related to COVID-19 and was caused by the health care provider’s acts or omissions.

There has been a recent surge in COVID-19 lawsuits, and plaintiffs have become creative in the language contained in their complaints. The language may claim an injury or death caused by a health care provider’s negligence related to COVID-19 without using the term COVID-19. For example, instead of the complaint stating the plaintiff died due to contracting COVID-19, the complaint will state the plaintiff died due to contracting a respiratory illness that eventually led to multi-organ failure.

Currently throughout the United States, cases related to COVID-19 injuries and death have been moved to federal court. This is due to the federal government allowing the COVID-19 pandemic to fall under the PREP Act. The PREP Act grants liability immunity to entities and individuals involved in developing, manufacturing, testing, distribution, administration and use of medical countermeasures. As the COVID-19 pandemic continued, seven amendments have been made to the PREP Act related to the medical countermeasures and who qualifies for immunity as a covered person. Health care providers and facilities have been identified as a covered person. With each amendment, the definition and qualification of a covered person have become more defined.

Once these cases are moved from state court to federal court, the judges must determine if the complaint was pled with particularity to include a cause of action related to COVID-19. The majority of federal courts have determined that the complaints do not include the specific language regarding COVID-19-related claims. Since the complaints do not specifically state a claim related to COVID-19, the health care provider does not qualify for immunity under the PREP Act. Therefore, the cases are sent back to the corresponding state court to be tried under that state’s medical negligence standard.

Florida has joined ranks with other states to combat these lawsuits and provide liability immunity to health care providers. Although Florida has passed a new law that gives liability immunity to health care providers and facilities, it is not an instant immunity. A complaint must still be filed, and the plaintiff must prove that the health care provider was negligent. However, if the health care provider can prove that they followed the guidance and standards from health care organizations, federal agencies or Florida agencies at the time of the incident, then immunity will apply.

The burden of proof that the plaintiff must prove is by the greater weight of the evidence. The plaintiff must prove more than just medical negligence. They must prove that the health care provider was grossly negligent or engaged in intentional misconduct. This means that the health care provider’s conduct must have been deliberate or committed with reckless disregard for the patient’s safety.

Even with this new law, in order for the immunity to apply to a health care provider, the complaint must state the damages, injuries or death was related to COVID-19. If the complaint states the medical negligence was related to anything other than COVID-19, the liability protection may not apply.

However, if the damage, injury or death is related to COVID-19 (e.g., medical diagnosis of COVID-19, positive COVID-19 respiratory swab, death certificate states cause of death was COVID-19), the health care provider should state the liability protection in the affirmative defenses. The new law provides additional affirmative defenses a health care provider should use.

The affirmative defenses that may apply to COVID-19-related claims against a health care provider include substantial compliance with government-issued health standards specifically related to COVID-19 when the injury occurred. This includes the early standards related to preserving or prioritizing supplies, materials or equipment due to widespread shortages of those necessary items.

Since the pandemic began, federal and state health care agencies have performed unannounced facility investigations to verify proper compliance with recommended health standards. Those certificates of compliance will be essential in proving that the facilities were making a good faith effort and substantially complied with the appropriate health standards at that time.

It will be essential to talk with your attorney regarding your facility’s compliance with the health care standards as soon as the pre-suit investigation begins. Although the court will not have a pre-suit hearing on health care liability protection related to COVID-19, it will help determine the strategy for the defense of your case.

*Megan is an associate in our Orlando, Florida office. She can be reached at 407.420.4381 or mjnelson@mdwcg.com.

_{Defense Digest, Vol. 27, No. 3, June 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}