Florida Senate - 2021 CS for SB 72 By the Committee on Rules; and Senators Brandes, Perry, Baxley, and Hutson 595-02736-21 202172c1 1 A bill to be entitled 2 An act relating to civil liability for damages 3 relating to COVID-19; creating s. 768.38, F.S.; 4 providing legislative findings and intent; defining 5 terms; specifying requirements for civil actions based 6 on COVID-19-related claims; requiring the court to 7 make certain determinations in such actions; providing 8 that plaintiffs have the burden of proof in such 9 actions; requiring plaintiffs to commence COVID-19 10 related claims within specified timeframes; creating 11 s. 768.381, F.S.; defining terms; providing 12 preliminary procedures for civil actions based on 13 COVID-19-related claims; providing the standard of 14 proof required at trial for such claims; providing 15 affirmative defenses; requiring COVID-19-related 16 claims to commence within specified timeframes; 17 providing construction; providing that the act 18 provides the exclusive cause of action for COVID-19 19 related claims against health care providers; 20 providing applicability; providing severability; 21 providing applicability and for retroactive 22 application; providing an effective date. 23 24 WHEREAS, an outbreak of the disease known as COVID-19, 25 which is caused by a novel coronavirus that was not previously 26 found in humans, occurred in Hubei province, China, in late 27 2019, and has currently been detected in more than 89 countries, 28 including the United States, and 29 WHEREAS, COVID-19 is a severe respiratory disease that can 30 result in illness or death and is caused by the person-to-person 31 spread of the novel coronavirus, and 32 WHEREAS, COVID-19, as a viral agent capable of causing 33 extensive loss of life or serious disability, is deadly, and 34 WHEREAS, the transmission of COVID-19 is a threat to human 35 health in this state, and 36 WHEREAS, the Secretary of the United States Department of 37 Health and Human Services declared on January 31, 2020, that a 38 public health emergency exists in the United States due to 39 confirmed cases of COVID-19 in this country, and 40 WHEREAS, on March 1, 2020, the State of Florida Department 41 of Health, in coordination with Governor Ron DeSantis, first 42 declared a public health emergency based on the spread of COVID 43 19, and 44 WHEREAS, throughout the declared state of emergency, the 45 Governor’s executive orders included industry-specific 46 restrictions to prevent the spread of COVID-19 based on the best 47 information available at the time, allowing and encouraging 48 certain businesses to continue to safely operate, and 49 WHEREAS, a strong and vibrant economy is essential to 50 ensure that Floridians may continue in their meaningful work and 51 ultimately return to the quality of life they enjoyed before the 52 COVID-19 outbreak, and 53 WHEREAS, Floridians must be allowed to earn a living and 54 support their families without unreasonable government 55 intrusion, and 56 WHEREAS, the United States Centers for Disease Control and 57 Prevention has issued health guidance to all state and local 58 governments and all citizens, and 59 WHEREAS, in March 2020, the Centers for Medicare and 60 Medicaid Services recommended the deferral of nonessential 61 surgeries and other procedures, and 62 WHEREAS, the guidance from the Centers for Medicare and 63 Medicaid Services to defer medical procedures was based in part 64 on its recognition that the conservation of critical health care 65 resources is essential, and 66 WHEREAS, on March 20, 2020, the Governor issued Executive 67 Order 20-72, which prohibited health care providers “from 68 providing any medically unnecessary, non-urgent or non-emergency 69 procedure or surgery which, if delayed, does not place a 70 patient’s immediate health, safety, or well-being at risk, or 71 will, if delayed, not contribute to the worsening of a serious 72 or life-threatening medical condition,” and 73 WHEREAS, on April 29, 2020, the Governor issued Executive 74 Order 20-112, which allowed health care providers to perform 75 procedures prohibited by the earlier order if the health care 76 provider had adequate supplies of personal protective equipment 77 and satisfied other conditions, and 78 WHEREAS, medical experts have been racing to develop 79 vaccines and to learn how COVID-19 is transmitted and how best 80 to treat those infected with the disease, and 81 WHEREAS, the Federal Government, along with state and local 82 governments, has sought to slow the spread of COVID-19 through 83 travel bans and restrictions, quarantines, lockdowns, social 84 distancing, and the closure of businesses or limitations on 85 business activities, including limitations on the provision of 86 medical services, and 87 WHEREAS, health care providers, including hospitals, 88 doctors, nurses, and other health care facilities and workers, 89 have struggled to acquire personal protective equipment and 90 other supplies to protect against the risk of COVID-19 91 transmission and medications used in the treatment of the 92 disease, and 93 WHEREAS, the circumstances of the COVID-19 pandemic have 94 made it difficult or impossible for health care providers to 95 maintain ideal levels of staffing, and 96 WHEREAS, health care providers are essential to the 97 residents of this state’s survival of the pandemic, and health 98 care providers have continued to treat patients despite the 99 potential, and still not fully known, risks of exposure to 100 COVID-19, and 101 WHEREAS, while many actions may seem reasonable during the 102 pandemic, some may attempt to construe these actions differently 103 in hindsight when calm is restored, and 104 WHEREAS, as the pandemic continues and recovery begins, 105 health care providers must be able to remain focused on serving 106 the health care needs of their respective communities and not on 107 the potential for unfounded lawsuits, and 108 WHEREAS, the Legislature finds that it is an overpowering 109 public necessity to enact legislation that will deter unfounded 110 lawsuits against individuals, businesses, health care providers, 111 and other entities based on COVID-19-related claims, while 112 allowing meritorious claims to proceed, and 113 WHEREAS, the Legislature finds that the unprecedented and 114 rare nature of the COVID-19 pandemic, together with the 115 indefinite legal environment that has followed, requires the 116 Legislature to act swiftly and decisively, NOW, THEREFORE, 117 118 Be It Enacted by the Legislature of the State of Florida: 119 120 Section 1. Section 768.38, Florida Statutes, is created to 121 read: 122 768.38 Liability protections for COVID-19-related claims.— 123 (1) The Legislature finds that the COVID-19 outbreak in 124 this state threatens the continued viability of certain business 125 entities, educational institutions, governmental entities, and 126 religious institutions that contribute to the overall well-being 127 of this state. The threat of unknown and potentially unbounded 128 liability to such businesses, entities, and institutions, in the 129 wake of a pandemic that has already left many of these 130 businesses, entities, and institutions vulnerable, has created 131 an overpowering public necessity to provide an immediate and 132 remedial legislative solution. Therefore, the Legislature 133 intends for certain business entities, educational institutions, 134 governmental entities, and religious institutions to enjoy 135 heightened legal protections against liability as a result of 136 the COVID-19 pandemic. The Legislature also finds that there are 137 no alternative means to meet this public necessity, especially 138 in light of the sudden, unprecedented nature of the COVID-19 139 pandemic. The Legislature finds the public interest as a whole 140 is best served by providing relief to these businesses, 141 entities, and institutions so that they may remain viable and 142 continue to contribute to this state. 143 (2) As used in this section, the term: 144 (a) “Business entity” has the same meaning as provided in 145 s. 606.03. The term also includes a charitable organization as 146 defined in s. 496.404 and a corporation not for profit as 147 defined in s. 617.01401. 148 (b) “COVID-19-related claim” means a civil liability claim 149 against a person, including a natural person, a business entity, 150 an educational institution, a governmental entity, or a 151 religious institution, which arises from or is related to COVID 152 19, otherwise known as the novel coronavirus. The term includes 153 any such claim for damages, injury, or death. Any such claim, no 154 matter how denominated, is a COVID-19-related claim for purposes 155 of this section. The term includes a claim against a health care 156 provider only if the claim is excluded from the definition of 157 COVID-19-related claim under s. 768.381, regardless of whether 158 the health care provider also meets one or more of the 159 definitions in this subsection. 160 (c) “Educational institution” means a school, including a 161 preschool, elementary school, middle school, junior high school, 162 secondary school, career center, or postsecondary school, 163 whether public or nonpublic. 164 (d) “Governmental entity” means the state or any political 165 subdivision thereof, including the executive, legislative, and 166 judicial branches of government; the independent establishments 167 of the state, counties, municipalities, districts, authorities, 168 boards, or commissions; or any agencies that are subject to 169 chapter 286. 170 (e) “Health care provider” means: 171 1. A provider as defined in s. 408.803. 172 2. A clinical laboratory providing services in this state 173 or services to health care providers in this state, if the 174 clinical laboratory is certified by the Centers for Medicare and 175 Medicaid Services under the federal Clinical Laboratory 176 Improvement Amendments and the federal rules adopted thereunder. 177 3. A federally qualified health center as defined in 42 178 U.S.C. s. 1396d(l)(2)(B), as that definition exists on the 179 effective date of this act. 180 4. Any site providing health care services which was 181 established for the purpose of responding to the COVID-19 182 pandemic pursuant to any federal or state order, declaration, or 183 waiver. 184 5. A health care practitioner as defined in s. 456.001. 185 6. A health care professional licensed under part IV of 186 chapter 468. 187 7. A home health aide as defined in s. 400.462(15). 188 8. A provider licensed under chapter 394 or chapter 397 and 189 its clinical and nonclinical staff providing inpatient or 190 outpatient services. 191 9. A continuing care facility licensed under chapter 651. 192 10. A pharmacy permitted under chapter 465. 193 (f) “Religious institution” has the same meaning as 194 provided in s. 496.404. 195 (3) In a civil action based on a COVID-19-related claim: 196 (a) The complaint must be pled with particularity. 197 (b) At the same time the complaint is filed, the plaintiff 198 must submit an affidavit signed by a physician actively licensed 199 in this state which attests to the physician’s belief, within a 200 reasonable degree of medical certainty, that the plaintiff’s 201 COVID-19-related damages, injury, or death occurred as a result 202 of the defendant’s acts or omissions. 203 (c) The court must determine, as a matter of law, whether: 204 1. The plaintiff complied with paragraphs (a) and (b). If 205 the plaintiff did not comply with paragraphs (a) and (b), the 206 court must dismiss the action without prejudice. 207 2. The defendant made a good faith effort to substantially 208 comply with authoritative or controlling government-issued 209 health standards or guidance at the time the cause of action 210 accrued. 211 a. During this stage of the proceeding, admissible evidence 212 is limited to evidence tending to demonstrate whether the 213 defendant made such a good faith effort. 214 b. If the court determines that the defendant made such a 215 good faith effort, the defendant is immune from civil liability. 216 If more than one source or set of standards or guidance was 217 authoritative or controlling at the time the cause of action 218 accrued, the defendant’s good faith effort to substantially 219 comply with any one of those sources or sets of standards or 220 guidance confers such immunity from civil liability. 221 c. If the court determines that the defendant did not make 222 such a good faith effort, the plaintiff may proceed with the 223 action. However, absent at least gross negligence proven by 224 clear and convincing evidence, the defendant is not liable for 225 any act or omission relating to a COVID-19-related claim. 226 (d) The burden of proof is upon the plaintiff to 227 demonstrate that the defendant did not make a good faith effort 228 under subparagraph (c)2. 229 (4) A plaintiff must commence a civil action for a COVID 230 19-related claim within 1 year after the cause of action accrues 231 or within 1 year after the effective date of this act if the 232 cause of action accrued before the effective date of this act. 233 Section 2. Section 768.381, Florida Statutes, is created to 234 read: 235 768.381 COVID-19-related claims against health care 236 providers.— 237 (1) DEFINITIONS.—As used in this section, the term: 238 (a) “Authoritative guidance” means nonbinding instructions 239 or recommendations from a federal, state, or local governmental 240 entity, a clinical professional organization, or another 241 authoritative source of clinical guidance. 242 (b) “COVID-19” means the novel coronavirus identified as 243 SARS-CoV-2; any disease caused by SARS-CoV-2, its viral 244 fragments, or a virus mutating therefrom; and all conditions 245 associated with the disease which are caused by SARS-CoV-2, its 246 viral fragments, or a virus mutating therefrom. 247 (c) “COVID-19 emergency” means a public health emergency 248 relating to COVID-19 which is declared by an emergency 249 declaration of the Federal Government or an emergency order of 250 the State Surgeon General or a state of emergency due to COVID 251 19 declared by executive order of the Governor. 252 (d) “COVID-19-related claim” means a civil liability claim 253 against a health care provider which arises from the: 254 1. Diagnosis or treatment of, or failure to diagnose or 255 treat, a person for COVID-19; 256 2. Provision of a novel or experimental COVID-19 treatment; 257 3. Transmission of COVID-19; 258 4. Delay or cancellation of a surgery or a delay or 259 cancellation of a medical procedure, a test, or an appointment 260 based on a health care provider’s interpretation or application 261 of government-issued health standards or authoritative guidance 262 specifically relating to the COVID-19 emergency; 263 5. An act or omission with respect to an emergency medical 264 condition as defined in s. 395.002, and which act or omission 265 was the result of a lack of resources directly caused by the 266 COVID-19 pandemic; or 267 6. The provision of treatment to a patient diagnosed with 268 COVID-19 whose injuries were directly related to an exacerbation 269 of the patient’s preexisting conditions by COVID-19. 270 271 The term does not include a claim alleging that an act or 272 omission by a health care provider caused a person to contract 273 COVID-19 or a derivative claim to such claim unless the person 274 was a resident or patient of the health care provider or a 275 person seeking care or treatment from the health care provider. 276 (e) “Government-issued health standards” means federal, 277 state, or local laws, rules, regulations, or orders that 278 describe the manner in which a health care provider must 279 operate. 280 (f) “Health care provider” means any of the following: 281 1. A provider as defined in s. 408.803. 282 2. A clinical laboratory providing services in this state 283 or services to health care providers in this state, if the 284 clinical laboratory is certified by the Centers for Medicare and 285 Medicaid Services under the federal Clinical Laboratory 286 Improvement Amendments and the federal rules adopted thereunder. 287 3. A federally qualified health center as defined in 42 288 U.S.C. s. 1396d(l)(2)(B), as that definition existed on the 289 effective date of this act. 290 4. Any site providing health care services which was 291 established for the purpose of responding to the COVID-19 292 pandemic pursuant to any federal or state order, declaration, or 293 waiver. 294 5. A health care practitioner as defined in s. 456.001. 295 6. A health care professional licensed under part IV of 296 chapter 468. 297 7. A home health aide as defined in s. 400.462(15). 298 8. A provider licensed under chapter 394 or chapter 397 and 299 its clinical and nonclinical staff providing inpatient or 300 outpatient services. 301 9. A continuing care facility licensed under chapter 651. 302 10. A pharmacy permitted under chapter 465. 303 (2) PRELIMINARY PROCEDURES.— 304 (a) In any civil action against a health care provider 305 based on a COVID-19-related claim, the complaint must be pled 306 with particularity by alleging facts in sufficient detail to 307 support each element of the claim. An affidavit of a physician 308 is not required as part of the pleading. 309 (b) If the complaint is not pled with particularity, the 310 court must dismiss the action. 311 (3) STANDARD OF PROOF.—A plaintiff who brings an action for 312 a COVID-19-related claim against a health care provider must 313 prove by the greater weight of the evidence that the health care 314 provider was grossly negligent or engaged in intentional 315 misconduct. 316 (4) AFFIRMATIVE DEFENSES.—If a health care provider proves 317 by the greater weight of the evidence the existence of an 318 affirmative defense that applies to a specific COVID-19-related 319 claim, the health care provider has no liability for that claim. 320 The affirmative defenses that may apply to a COVID-19-related 321 claim against a health care provider include, in addition to any 322 other affirmative defenses recognized by law, the health care 323 provider’s: 324 (a) Substantial compliance with government-issued health 325 standards specifically relating to COVID-19 or other relevant 326 standards, including standards relating to the preservation or 327 prioritization of supplies, materials, or equipment; 328 (b) Substantial reliance upon government-issued health 329 standards specific to infectious diseases in the absence of 330 standards specifically applicable to COVID-19; 331 (c) Substantial compliance with government-issued health 332 standards relating to COVID-19 or other relevant standards was 333 not possible due to the widespread shortages of necessary 334 supplies, materials, equipment, or personnel; 335 (d) Substantial compliance with any applicable government 336 issued health standards relating to COVID-19 or other relevant 337 standards if the applicable standards were in conflict; or 338 (e) Substantial compliance with government-issued health 339 standards relating to COVID-19 or other relevant standards was 340 not possible because there was insufficient time to implement 341 the standards. 342 (5) LIMITATIONS PERIOD.— 343 (a) An action for a COVID-19-related claim against a health 344 care provider which arises out of the transmission, diagnosis, 345 or treatment of COVID-19 must commence within 1 year after the 346 later of the date of death due to COVID-19, hospitalization 347 related to COVID-19, or the first diagnosis of COVID-19 which 348 forms the basis of the action. 349 (b) An action for a COVID-19-related claim against a health 350 care provider which does not arise out of the transmission, 351 diagnosis, or treatment of COVID-19, such as a claim arising out 352 of a delayed or canceled procedure, must commence within 1 year 353 after the cause of action accrues. 354 (c) Notwithstanding paragraph (a) or paragraph (b), an 355 action for a COVID-19-related claim that accrued before the 356 effective date of this act must commence within 1 year after the 357 effective date of this act. 358 (6) INTERACTION WITH OTHER LAWS.— 359 (a) This section is in addition to other provisions of law, 360 including, but not limited to, chapters 400, 429, 766, and 768, 361 and supersedes any conflicting provision of law but only to the 362 extent of the conflict. 363 (b) This section provides the exclusive cause of action for 364 a COVID-19-related claim against a health care provider. 365 (c) This section does not apply to claims governed by 366 chapter 440. 367 Section 3. If any provision of this act or its application 368 to any person or circumstance is held invalid, the invalidity 369 does not affect other provisions or applications of the act 370 which can be given effect without the invalid provision or 371 application, and to this end the provisions of this act are 372 severable. 373 Section 4. This act applies to causes of action that accrue 374 within 1 year after the effective date of this act and applies 375 retroactively. However, this act does not apply in a civil 376 action against a particular named defendant which is commenced 377 before the effective date of this act. 378 Section 5. This act shall take effect upon becoming a law.