At the end of March, Florida joined the roster of states that have erected legal shields for health care providers against COVID-19-oriented liability claims. Concerned about uncertainty surrounding the emergency measures taken in response to COVID-19 and the effects that lawsuits could have on the economic recovery and the ability of health care providers to remain focused on serving the needs of their communities, the Florida Legislature passed CS/SB 72 on March 29, 2021.  Governor Ron DeSantis signed CS/SB 72 into law as Laws of Florida 2021-1.  This law creates two new statutory provisions – section 768.38 and section 768.381, Florida Statutes – effective on passage.

What Are the Liability Protections?

Section 768.381, Florida Statutes provides protection for health care providers regarding COVID-19-related claims, as follows:

• Complaints alleging claims subject to the law must be pled with particularity, or will be dismissed. This is a higher pleading standard than typically required for a civil complaint, and requires a greater degree of specificity.

• Plaintiffs must prove gross negligence or intentional misconduct. This is a higher standard than ordinary negligence or professional malpractice.

• Health care providers are provided with several affirmative defenses which, if proven, preclude liability. These defenses primarily relate to a provider’s substantial compliance with government-issued standards regarding COVID-19, infectious disease generally in the absence of standards specifically applicable to COVID-19 or the inability to comply with applicable standards in light of medical supply shortages.

• There is a one-year statute of limitations on COVID-19-related claims against health care providers, which is substantially shorter than that for simple and medical negligence claims. When this statute starts to run depends on whether the claim arises out of the transmission, diagnosis, or treatment of COVID-19, or from other circumstances such as a delayed or canceled procedure. Actions for COVID-19 related claims that accrued before the law’s effective date must commence within one year of the effective date.

Who Is a “Health Care Provider”?

The term “health care provider” encompasses numerous types of health care entities and individual practitioners.  The term includes, without limitation: providers licensed by Florida’s Agency for Health Care Administration and listed in section 408.802 Florida Statutes (such as hospitals, ambulatory surgery centers, nursing homes, home health agencies, and home medical equipment providers); health care practitioners as defined in section 456.001 Florida Statutes (such as doctors, physician assistants, nurse practitioners, nurses, pharmacists, dentists, optometrists and physical therapists); health care service sites established for responding to the COVID-19 pandemic pursuant to any federal or state order, declaration, or waiver; licensed continuing care facilities; CLIA-certified clinical laboratories, and pharmacies, among others.

What is a “COVID-19-related Claim”?

A “COVID-19-related claim” means a civil liability claim against a health care provider arising from:

• Diagnosis or treatment of, or failure to diagnose or treat, a person for COVID-19,

• Provision of a novel or experimental COVID-19 treatment,

• Transmission of COVID-19,

• Delay or cancellation of a surgery or delay or cancellation of a medical procedure, test, or appointment based on a health care provider’s interpretation or application of government-issued health standards or authoritative guidance specifically relating to the COVID-19 emergency,

• An act or omission with respect to an emergency medical condition as defined by Florida law, and which was the result of a lack of resources directly caused by the COVID-19 pandemic, or

• 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.

This statute only applies to claims that accrued before, and within one year after, its effective date. Accordingly, COVID-19-related claims that accrue after March 29, 2022 will not be subject to the requirements and limitations listed above, unless the statute is extended by the Florida Legislature.