Fla. Provides COVID Liability Shield for ‘Good-Faith’ Compliance with Health Guidelines

Frank Ferreri

Tallahassee, FL (WorkersCompensation.com) – With health officials warning of a coming “fourth wave” of COVID-19 amid sometimes-lax enforcement of masking and social distancing policies, several states have begun passing legislation to limit the number of coronavirus-related lawsuits.

One of those states is Florida, where Gov. Ron DeSantis signed into law this week SB 72, a “shield law” that protects businesses, health care providers, schools, religious institutions, and public entities from COVID-19 liability, provided would-be defendants made a good-faith effort to follow “authoritative or controlling government-issued health standards or guidance.”

So, how does the new Florida law work?

If a person files a lawsuit against an entity along with an affidavit from a Florida-licensed doctor stating that the person’s COVID-19-related damages, injury, or death occurred as result of what the entity did or didn’t do, the entity won’t face liability if the court finds that the entity made a good-faith effort to follow the prevailing health standards at the time the alleged injury occurred.

If the court doesn’t find that the entity made a good-faith effort, the person filing the lawsuit must prove by “clear and convincing” evidence that there was “at least gross negligence” on the entity’s part.

The new law also has a fairly tight statute of limitations as COVID-19-related torts must be filed within a year after the alleged injury or by March 29, 2022, if the one-year window had already closed before the law went into effect.

Terminology

In legal circles, “clear and convincing” evidence is a mid-level standard of proof that is a higher bar than the preponderance standard that applies in many civil cases but lower than the beyond-a-reasonable-doubt standard from criminal law. “Gross negligence” also tends to be a relatively tough standard to meet as courts generally look for knowing and willful disregard of the potential danger on defendants’ part.

With particular reference to health care professionals, some other vocabulary emerging from Florida’s new law includes:

Authoritative guidance. Nonbinding instructions or recommendations from a federal, state, or local governmental entity, a clinical professional organization, or another authoritative source of clinical guidance.

COVID-19-related claim. A civil liability claim that arises from:

  1. Diagnosis or treatment of, or failure to diagnose or treat, a person for COVID-19.
  2. Provision of a novel or experimental COVID-19 treatment.
  3. Transmission of COVID-19.
  4. Delay or cancellation of a medical procedure based on a health care provider’s following government-issued COVID-19 guidance.
  5. Acting or failing to act due to a lack of resources “directly caused by the COVID-19 pandemic.”
  6. The provision of treatment to a patient diagnosed with COVID-19 whose injuries were directly related to an exacerbation of the patient’s preexisting conditions by COVID-19.

Government-issued health standards. Federal, state, or local laws, rules, regulations, or orders that describe how a health care provider must operate.

Context

Florida is not alone in shielding businesses and other entities from coronavirus-related litigation. More than half the states have either enacted legislation or issued executive orders for curbing would-be lawsuits. In some cases, the shield protects only health care entities and essential businesses, but other states have taken a broader view.

For example, in Arkansas, Executive Order No. 20-33 declares that all business and their employee are immune from civil liability resulting from COVID-19 exposure.

As is the case in some states that have enacted legislation or issued executive orders creating a presumption of compensability in cases where workers contract COVID-19, the Florida law highlights the importance of following Centers for Disease Control guidelines.

In the preamble to the text of the bill that made it past DeSantis’ desk, the need to protect entities from lawsuits was tied to a “strong and vibrant economy.” The act noted that the CDC issued “health guidance to all state and local governments and all citizens.”

As a result, in the Sunshine State, entities sticking to CDC or other governmental guidance will have a shield against COVID-related lawsuits. Those that didn’t risk being hauled into court, especially if the acted with gross negligence toward the virus’ spread.

News brought to you by WorkersCompensation.com