New Florida Law Affords Very Broad Civil COVID-19 Immunity

The state of Florida enacted broad COVID-19 civil immunity protections in a bill signed by the Governor on March 29, 2021.

The immunities provided appear to be among the broadest in the country to date. They come at a time that some states are considering repealing already enacted immunity statutes. And, at a time when New York just repealed its immunity statute as to the nursing home industry.

An extensive “WHEREAS” preamble reviews the history and severity of the COVOD-19 crisis. It also cites to the need for the protection of a “strong and vibrant economy” and to allow “Floridians to earn a living and support their families without unreasonable government intrusion.” Specific reference is made to the medical community doing the best it can under changing and evolving circumstances. We wrote about immunity issues last year here and here.

The statutory language itself cites to “[t]he threat of unknown and potentially unbounded liability…” as providing the basis for “heightened legal protections against liability as the result of the COVID-19 pandemic.”

The law provides immunity for businesses, including charitable and not-for profit entities for civil liability claims arising out of COVID-19. The immunity is intended to cover educational institutions, very broadly defined health care providers and governmental entities.

There is an extensive section with provisions specifically related to health care providers. For example:

  • “Authoritative guidance” is very, very broadly defined, including “or another authoritative source of clinical guidance.” In one part of the country (indeed in different parts of Florida), that definition might include Dr. Scott Atlas, and in others, Dr. Sanjay Gupta.
  • The definition of what constitutes a COVID-19 claim is very broadly defined.

The statute further defines the procedural niceties to be followed for a suit filed for COVID-19 claims. For claims other than those against a health care provider, which are discussed below, the statute provides as follows:

  1. The complaint must be pled “with particularity.”
  2. The complaint must be filed with an affidavit of merit by a physician “actively licensed in” Florida to the effect that the physician believes to reasonable degree of certainty that the claimed COVID-19 damages were “a result of the defendant’s acts or omissions.”
  3. The court “must determine, as a matter of law” that the plaintiff complied with 1 and 2 above, and if not the court “must dismiss the action without prejudice.”
  4. The court must also determine “whether the defendant made a good faith effort to comply with authoritative or controlling” government standards or guidance when the cause of action accrued.
    • In making this assessment, evidence is “limited to evidence tending to demonstrate whether defendant made such a good faith effort.”
    • If the court finds that the defendant made such a good faith effort, the defendant is immune from civil liability.
  5. If the court determines that a good faith effort was not made, there is no civil immunity. However, in order to prevail, the plaintiff bears the burden of proving gross negligence by clear and convincing evidence.
  6. The statute of limitations for these COVID-19 claims is one year from the date of accrual of the cause of action, or one year from March 29, 2021 (the date of the enactment of the statute) if the cause of action accrued before that date.

For claims against health care providers, the process is as follows:

  1. The complaint must be pled with “particularity by alleging facts in sufficient detail to support each element of the claim.”
    • An affidavit of merit is not (This is in contrast to other COVID-19 claims which do require such an affidavit.)
    • If the complaint is not pled with “particularity,” the court “must dismiss the action.”
  2. The burden of proof is a preponderance of the evidence that the provider “was grossly negligent or engaged in intentional misconduct.” (This also is in contrast to the other COVID-19 claims which must be proved by clear and convincing evidence.)
  3. In addition to traditional affirmative defenses in cases against medical providers, the statute specifies several defenses that the provider has the burden of proving by a preponderance of the evidence. If so, proven, there is no liability for the provider. The specified defenses are:
    • Substantial compliance with government-issued:
      • COVID-19 standards.
      • Infectious disease standards, in the absence of COVID-19 standards.
    • Substantial compliance with government-issued standards was “not possible due to widespread shortages of necessary supplies, material, equipment or personnel.”
    • There was a conflict in government issued standards.
    • Substantial compliance with government standards was not possible “because of insufficient time to implement the standards.”
  4. As for the statute of limitations:
    • For claims arising out of the “transmission, diagnosis or treatment” of COVID-19, the statute of limitations is one year from the later of: death from COVID-19, hospitalization for COVID-19 or first diagnosis of COVID-19.
    • For other COVID-19 claims, such as “a delayed or cancelled procedure”, the statute of limitations is one year from accrual.
    • For claims accruing before the date of the statute, the statute of limitations is one year from March 29, 2021 (the date of the enactment of the statute).
  5. The section as to health care providers applies retroactively to the enactment of the statute, and for one year after its enactment.

It will be interesting to see how aggressively the plaintiff’s bar pursues these actions, and how strongly the trial bench in Florida will implement the strong legislative intent to afford civil immunity. This is obviously a rapidly evolving issue across the country that we will continue to follow closely.

Earlier in March, my partner Sean Stadelman and I presented a webinar on civil immunity for COVID-19. It is available here for those interested in a broader discussion of the topic.

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