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