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Florida lawmakers reply to COVID-19 with … tort reform

TALLAHASSEE – In response to corporations, schools, churches, and health care providers fearful they could be sued for legal liability for people’s exposure to COVID-19, Florida lawmakers are swiftly pursuing action to do what they do know best: limit complaints.

The House of Representatives Subcommittee on Civil Justice and Property Rights, which met for the first time since the outbreak of the pandemic, approved HB 7 on Wednesday along the lines of partisan politics. It will create new barriers to lawsuits related to COVID-19. An identical draft law is pending review in the Senate during the 2021 legislative period, which begins on March 2.

A second measure to protect nursing homes, hospitals and other health care providers by raising the standard for COVID-19 liability is being worked out by the House Health and Human Services Committee, which held a workshop on the matter on Thursday.

However, it is unclear how important the measure is and several lawmakers are calling for more immediate action to help businesses cope with their financial problems.

Rep. Lawrence McClure, a Dover Republican who sponsors HB 7, admitted that “fewer than 10” lawsuits have been filed in Florida with claims related to COVID-19. But he said the bill was necessary “to reduce the risk of potential civil liability”. Other estimates of the number of COVID-related lawsuits are higher.

“This bill is designed to help Florida businesses understand that when they act in good faith to comply with the rules, they don’t have a cloud of potential frivolous litigation over their heads,” said McClure. “It’s the fear of frivolous lawsuits as this unfolds.”

Opponents, which include consumer advocates, health care workers unions and plaintiffs’ lawyers, argued that the bill raises the standard of gross negligence and increases the burden of proof so high that it is almost impossible for anyone to blame an employer or company will endanger them.

Senator Gary Farmer, the Democratic Senate chairman from Fort Lauderdale who is a trial attorney, said the legislation is not required because the threshold for proving someone got COVID-19 through contact with a company or workplace is is already so high that only a few lawyers are willing to take on the cases.

To win a case, a plaintiff must demonstrate that the defendant “breached a duty” to adhere to established standards to protect customers or employees, and also prove that he caught COVID-19 at that facility, he said .

But because of the spread of the virus in the community, “you will never be able to prove that you caught COVID in a particular location,” Farmer said.

The burden of proof lies with the doctors

HB 7 puts the burden of filing a lawsuit almost entirely on the word of a doctor who “must confirm with reasonable medical certainty, in the doctor’s opinion, that the plaintiff’s COVID-19-related harm, injury, or death occurred as follows of the actions or omissions of the accused, the bill states.

A judge would then determine whether the company was “making good faith efforts to materially comply with any relevant or controlling government-issued health standards or guidelines at the time the cause of action arose”.

Curry G. Pajcic of the Florida Justice Association, which represents the plaintiffs’ attorneys, told the House Civil Justice Committee that the bill was unconstitutional because it “makes the judge a jury” and “uses incredibly high standards that no one meets can “.

St. Petersburg Democrat MP Ben Diamond attempted to amend the bill to clarify how and when a doctor’s affidavit would be used. The committee rejected attempts to establish a party line.

The move is a top priority for the state’s influential restaurant, hotel and entertainment industries. An industry task force of 40 people, including representatives from restaurants, hotels, nursing homes, retailers, builders and insurers, met over the summer and concluded that higher standards are needed.

William Large, president of the Florida Justice Reform Institute, told the committee that he had found 53 lawsuits filed against nursing homes by staff, patients and their families, cruise ships by passengers and crews, tour operators by customers in reimbursement disputes, and a host by Workplace clashes linked to the coronavirus.

He argued that if Florida increased its procedural standards for COVID-19 liability, it would join 16 states that have raised standards of care in medical liability cases and 17 states that are addressing exposure liability.

The coalition hired TaxWatch, the corporate-backed research organization, to write a report that concluded that the looming litigation could put employers in a position to lose confidence in the economy and the state could lose billions in business and thousands of jobs.

Hundreds of COVID-19-related lawsuits have been filed in Florida, according to a website created by law firm Hunton Andrews Kurth to track COVID-19 complaints. Few cases relate to liability due to exposure to COVID-19, and the majority stem from companies suing their insurer for refusing to cover their business interruption insurance.

Samantha Padgett, general counsel for the Florida Restaurant & Lodging Association, said the legislation was necessary to “place their industry in a better position than it is now.”

She spoke of unclear regulations and confusion “when trying to comply with contradicting regulations”. She did not mention any pending lawsuits or liabilities.

What about small businesses?

Democrats argued that lawmakers could do more to help small businesses by drafting bills to address concerns they said were more immediate, like meeting their loan and rental obligations or creating bridging loans to keep them in business.

“What really frustrates me is that we have all of these very real small business challenges and no one is saying this is one of them,” said Rep. Anna Eskamani, an Orlando Democrat. “The biggest calls I get are,” I need rent relief and I need my unemployment, “and I can’t think of anything on that.”

MP Michael Gottlieb, a Davie Democrat, called on the House to narrow the focus of the bill.

“We have bad actors who are lawyers, there is no doubt about that,” he said. “Why don’t we have a bill punishing bad actors for bringing frivolous lawsuits? And I think that’s a better solution to the problem we have. “

Lakey Love, of the Florida Policy Action Network, said she represents working class people and said she was concerned that the bill would put workers at greater risk if employers were protected from their protection.

A separate bill for healthcare providers

The House Health and Human Services Committee also plans to develop laws to protect health care providers, including nursing homes, from lawsuits.

Mel Beal, CEO of Airamid Health Services, which represents 40 skilled care facilities and three assisted living facilities across Florida, said the lack of guidance from state and federal agencies, as well as conflicting guidelines on how to deal with COVID-19, is increasing the number of those affected would have exposure from companies.

“The risk of litigation against long-term caregivers is not theoretical, but real and ongoing,” he said. He said relief was needed to protect against the cost of a “lawsuit to settle” threat where attorneys seek information as a precursor to a lawsuit in order to force potential defendants to settle without going to court.

Sam Brooks, project manager for the National Consumer Voice for Quality Long-Term Care, said most cases occur when nursing homes “do not provide basic care” and residents and their families seek additional information.

“In many situations, the courts may be the only potential source of justice for residents who have been injured,” he said. “Removing access to court could be devastating and harm residents” and “reduce worker safety by allowing attendees to deteriorate in a facility”.

But Thomas S. Edwards, Jr., a trial attorney in Jacksonville, called the measure “a solution to a problem” at a workshop before the House Health and Human Services Committee Thursday.

He said he had reviewed the cases submitted so far and only six were affected by COVID.

He argued that if a health facility “does not follow the most basic standards or practices that have been in place for years, they could be sued”. But because there are “fluctuating standards” and they follow basic standards of care, “they will have protection from being sued.”

Beal said relief was needed to protect against the cost of a “lawsuit to settlement” threat, where attorneys seek information as a precursor to a lawsuit in order to force potential defendants to settle without going to court.

A similar effort to expand corporate COVID-19 liability coverage was attempted in Congress, but Senate majority leader Mitch McConnell tried and failed to include a measure in the stimulus plan passed in December.

The Times / Herald Tallahassee Bureau reporter Lawrence Mower contributed to this report.

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