Since the outbreak of COVID-19 more than a year ago, healthcare workers faced unprecedented challenges, lack of supplies, long-hours, and a lack of understanding of its symptoms and treatment, inter alia. Given the gravity and unparalleled nature of the virus, Florida legislators have introduced their first legislative initiative aimed at providing protection to healthcare providers. Governor DeSantis signed Senate Bill No. 72, also known as Liability protections for COVID-19 related claims and COVID-19 related claims against healthcare providers, into law on March 29, 2021.
This article highlights the bill’s protections and compares the COVID-19 law to the medical malpractice standard pursuant to Chapter 766, Florida Statute. Senate Bill No. 72, codified as sections 768.38, and 768.31, Florida Statute, provides protection to healthcare providers by shortening the timeframe to file suit, implementing a heightened pleading standard and a rigorous standard of proof, and enumerating defenses for healthcare providers who substantially comply with government-issued health standards.
The COVID-19 bill allows for a shortened time for the filing of lawsuits against healthcare providers. The action must be filed within one year after the date of death, the hospitalization related to COVID-19, or the first diagnosis of COVID-19, which forms the basis of the action. This one-year time constraint also applies to any claim in which the claimant did not receive treatment due to delayed or canceled procedure. In medical malpractice claims, a claimant has up to four years to file a claim. Notably, the medical malpractice statute remains the same. Therefore, when a claim is filed, it is important to understand whether or not the claim is COVID-19-related to determine whether the one year of the four-year statute of limitations applies.
The COVID-19 bill also offers a heightened pleading standard requirement. A claimant must plead with particularity by alleging facts in sufficient detail to support each element of the claim. This heightened pleading standard is similar to the standard alleging fraud, which mandates that the cause of action must be clearly and concisely set forth and not just legal conclusions. Thus, simply alleging that the healthcare provider was negligent in a COVID-19 claim will not meet the COVID-19 pleading standard.
Notably, in medical malpractice investigation lawsuits, a claimant must submit an affidavit by a physician to corroborate the medical malpractice claim. In contrast, the COVID-19 bill does not require such an affidavit. However, even without the affidavit requirement, healthcare providers should take solace in the fact that the new heightened pleading standard makes a motion to dismiss a more realistic opportunity.
In addition to the heightened pleading standard, the standard of proof in COVID-19-related claims may only be brought if the healthcare provider was grossly negligent or engaged in intentional misconduct. To prevail in a medical malpractice action, a plaintiff must identify the standard of care owed by the physician, prove the physician breached that duty outside of the standard of care, and establish that the breach proximately caused the injury alleged. In contrast, to prevail on COVID-19 claims, the claimant must prove the healthcare provider was grossly negligent or engaged in intentional misconduct. Grossly negligent is something more than just simple negligence and requires conduct so reckless or wanting in care that it constitutes a conscious disregard or indifference to the persons exposed to such conduct. Intentional misconduct means the wrongdoer intended to cause the harm.
The bill also provides defenses. Specifically, the bill states that a healthcare provider will not be liable if they substantially complied with government-issued health standards relating to COVID-19. This defense also includes the inability of the healthcare provider to substantially comply with the standards due to widespread shortages, including personnel, conflict, or insufficient time to implement the standards. “Substantial compliance” means that although the standards were not fully complied with, a significant portion were in compliance. In other words, a healthcare provider would only have to prove that their practice was so nearly close to the spirit of the government-issued health standard that they substantially complied with and, thus will not be held liable.
This new law is intended to provide some relief to healthcare providers and deter litigation. By implementing the stringent time constraints to file lawsuits, heightened pleading requirements, new standard of proof, and defenses, healthcare providers have the ability to defend cases early on and avoid the expense of litigation. The COVID-19 bill became effective on March 29, 2021 and applies retroactively. The bill does not apply to cases in active ongoing litigation.
Maria F. Gibson is a Practice Group Partner with multi-practice business law firm Kelley Kronenberg, where she heads the firm’s Nursing Home Defense practice area and has defended multiple medical malpractice claims. She may be reached at (800) 484-4381 or mgibson@kklaw.com.
Joseph Mackey is an Attorney at Kelley Kronenberg where he handles matters related to First Party Property Insurance Defense Litigation and was a former attorney with the Florida Department of Health. He may be reached at (800) 484-4381 or jmackey@kklaw.com.
