Florida Senate - 2021 SB 74 By Senator Brandes 24-01546B-21 202174__ 1 A bill to be entitled 2 An act relating to COVID-19-related claims against 3 health care providers; creating s. 768.381, F.S.; 4 defining terms; providing preliminary procedures for 5 civil actions based on COVID-19-related claims; 6 providing the standard of proof required at trial for 7 such claims; providing immunity from liability for 8 COVID-19-related claims under certain circumstances; 9 requiring COVID-19-related claims to commence within a 10 specified timeframe; providing construction; providing 11 applicability; providing severability; providing for 12 retroactive application; providing an effective date. 13 14 WHEREAS, an outbreak of the disease known as COVID-19, 15 which is caused by a novel coronavirus that was not previously 16 found in humans, occurred in Hubei province, China, in late 17 2019, and has currently been detected in more than 89 countries, 18 including the United States, and 19 WHEREAS, COVID-19 is a severe respiratory disease that can 20 result in illness or death and is caused by the person-to-person 21 spread of the novel coronavirus, and 22 WHEREAS, COVID-19, as a viral agent capable of causing 23 extensive loss of life or serious disability, is deadly, and 24 WHEREAS, the transmission of COVID-19 is a threat to human 25 health in this state, and 26 WHEREAS, the Secretary of the United States Department of 27 Health and Human Services declared on January 31, 2020, that a 28 public health emergency exists in the United States due to 29 confirmed cases of COVID-19 in this country, and 30 WHEREAS, on March 1, 2020, the State of Florida Department 31 of Health, in coordination with Governor Ron DeSantis, first 32 declared a public health emergency based on the spread of COVID 33 19, and 34 WHEREAS, the United States Centers for Disease Control and 35 Prevention has issued health guidance to all state and local 36 governments and all citizens, and 37 WHEREAS, in March 2020, the Centers for Medicare and 38 Medicaid Services recommended the deferral of nonessential 39 surgeries and other procedures, and 40 WHEREAS, the guidance from the Centers for Medicare and 41 Medicaid Services to defer medical procedures was based in part 42 on its recognition that the conservation of critical health care 43 resources is essential, and 44 WHEREAS, on March 20, 2020, the Governor issued Executive 45 Order 20-72, which prohibited health care providers “from 46 providing any medically unnecessary, non-urgent or non-emergency 47 procedure or surgery which, if delayed, does not place a 48 patient’s immediate health, safety, or well-being at risk, or 49 will, if delayed, not contribute to the worsening of a serious 50 or life-threatening medical condition,” and 51 WHEREAS, on April 29, 2020, the Governor issued Executive 52 Order 20-112, which allowed health care providers to perform 53 procedures prohibited by the earlier order if the health care 54 provider had adequate supplies of personal protective equipment 55 and satisfied other conditions, and 56 WHEREAS, medical experts have been racing to develop 57 vaccines and to learn how COVID-19 is transmitted and how best 58 to treat those infected with the disease, and 59 WHEREAS, the Federal Government, along with state and local 60 governments, has sought to slow the spread of COVID-19 through 61 travel bans and restrictions, quarantines, lockdowns, social 62 distancing, and the closure of businesses or limitations on 63 business activities, including limitations on the provision of 64 medical services, and 65 WHEREAS, health care providers, including hospitals, 66 doctors, nurses, and other health care facilities and workers, 67 have struggled to acquire personal protective equipment and 68 other supplies to protect against the risk of COVID-19 69 transmission and medications used in the treatment of the 70 disease, and 71 WHEREAS, the circumstances of the COVID-19 pandemic have 72 made it difficult or impossible for health care providers to 73 maintain ideal levels of staffing, and 74 WHEREAS, health care providers are essential to the 75 residents of this state’s survival of the pandemic, and health 76 care providers have continued to treat patients despite the 77 potential, and still not fully known, risks of exposure to 78 COVID-19, and 79 WHEREAS, while many actions may seem reasonable during the 80 pandemic, some may attempt to construe these actions differently 81 in hindsight when calm is restored, and 82 WHEREAS, as the pandemic continues and recovery begins, 83 health care providers must be able to remain focused on serving 84 the health care needs of their respective communities and not on 85 the potential for unfounded lawsuits, and 86 WHEREAS, the Legislature finds that it is an overpowering 87 public necessity to enact legislation that will deter unfounded 88 lawsuits against health care providers based on COVID-19-related 89 claims, while allowing meritorious claims to proceed, and 90 WHEREAS, the Legislature finds that it is necessary to 91 require those filing lawsuits against health care providers to 92 consider the extraordinary circumstances arising out of the 93 public health emergency caused by the pandemic, NOW, THEREFORE, 94 95 Be It Enacted by the Legislature of the State of Florida: 96 97 Section 1. Section 768.381, Florida Statutes, is created to 98 read: 99 768.381 COVID-19-related claims against health care 100 providers.— 101 (1) DEFINITIONS.—As used in this section, the term: 102 (a) “COVID-19” means the novel coronavirus identified as 103 SARS-CoV-2; any disease caused by SARS-CoV-2, its viral 104 fragments, or a virus mutating therefrom; and all conditions 105 associated with the disease which are caused by SARS-CoV-2, its 106 viral fragments, or a virus mutating therefrom. 107 (b) “COVID-19-related claim” means a civil liability claim, 108 whether pled as negligence, breach of contract, or otherwise, 109 against a health care provider which directly, indirectly, or in 110 effect alleges that: 111 1. The health care provider failed to follow clinical 112 authoritative or government-issued health standards or guidance 113 relating to COVID-19; 114 2. The health care provider failed to properly interpret or 115 apply the standards or guidance with respect to the provision of 116 health care or related services, or lack thereof, or the 117 allocation of scarce resources, or assistance with daily living; 118 3. The health care provider was negligent in the provision 119 of a novel or experimental COVID-19 treatment; or 120 4. In the absence of applicable standards and guidance 121 specific to COVID-19, the health care provider failed to follow 122 clinical authoritative or government-issued health standards or 123 guidance relating to infectious diseases in preventing the 124 transmission of COVID-19 or in diagnosing or treating a person 125 for COVID-19. 126 (c) “Government-issued health standards or guidance” means 127 any of the following that are related to COVID-19 or other 128 infectious diseases and that describe the manner in which a 129 health care provider must operate at the time of the alleged act 130 or omission: 131 1. A federal, state, or local law, regulation, or 132 ordinance; 133 2. A written order or other document published by a 134 federal, state, or local government or regulatory body; 135 3. Standards or guidance issued by the Agency for Health 136 Care Administration or the United States Centers for Disease 137 Control and Prevention, the National Institutes of Health, the 138 United States Food and Drug Administration, or the Centers for 139 Medicare and Medicaid Services; or 140 4. Guidance issued by a clinical professional organization 141 which was used by the Federal Government in developing a 142 response to COVID-19. 143 (d) “Health care provider” means any of the following: 144 1. A provider as defined in s. 408.803. 145 2. A clinical laboratory providing services in this state 146 or services to health care providers in this state, if the 147 clinical laboratory is certified by the Centers for Medicare and 148 Medicaid Services under the federal Clinical Laboratory 149 Improvement Amendments and the federal rules adopted thereunder. 150 3. A federally qualified health center as defined in 42 151 U.S.C. s. 1396d(l)(2)(B), as that definition exists on the 152 effective date of this act. 153 4. Any site providing health care services which was 154 established for the purpose of responding to the COVID-19 155 pandemic pursuant to any federal or state order, declaration, or 156 waiver. 157 5. A health care practitioner as defined in s. 456.001. 158 6. A health care professional licensed under part IV of 159 chapter 468. 160 7. A home health aide as defined in s. 400.462(15). 161 (2) PRELIMINARY PROCEDURES.— 162 (a) In any civil action against a health care provider 163 based on a COVID-19-related claim, the complaint must be pled 164 with particularity by alleging facts in sufficient detail to 165 support each element of the claim. An affidavit of a physician 166 is not required as part of the pleading. 167 (b) If the complaint is not pled with particularity, the 168 court must dismiss the action. 169 (3) STANDARD OF PROOF.—A plaintiff who brings an action for 170 a COVID-19-related claim against a health care provider must 171 prove by the greater weight of the evidence that the health care 172 provider was grossly negligent or engaged in intentional 173 misconduct: 174 (a) By failing to substantially follow authoritative or 175 applicable government-issued health standards or guidance 176 relating to COVID-19; 177 (b) In interpreting or applying the standards or guidance 178 with respect to the provision of health care or related 179 services, or lack thereof, or the allocation of scarce resources 180 or assistance with daily living; or 181 (c) In the provision of a novel or experimental COVID-19 182 treatment. 183 184 A health care provider is immune from liability for a COVID-19 185 related claim if supplies, materials, equipment, or personnel 186 necessary to comply with the applicable government-issued health 187 standards or guidance at issue were not readily available or 188 were not available at a reasonable cost. 189 (4) LIMITATIONS PERIOD.—An action for a COVID-19-related 190 claim against a health care provider must commence within 1 year 191 after the later of the date of death due to COVID-19, 192 hospitalization related to COVID-19, or the first diagnosis of 193 COVID-19 which forms the basis of the action. However, a 194 claimant whose cause of action for a COVID-19-related claim 195 accrued before the effective date of this act must commence such 196 action within 1 year after the effective date of this act. 197 (5) CONFLICTING LAWS.—This section shall prevail over any 198 conflicting provisions of law to the extent of the conflict, 199 except for claims brought under chapter 440. 200 (6) APPLICABILITY.—This section applies to causes of action 201 that accrue no later than 1 year after the termination or 202 expiration of the state public health emergency relating to 203 COVID-19 which was declared by the State Surgeon General or any 204 nationwide emergency declaration by the Federal Government, 205 whichever is later. 206 Section 2. If any provision of this act or its application 207 to any person or circumstance is held invalid, the invalidity 208 does not affect other provisions or applications of the act 209 which can be given effect without the invalid provision or 210 application, and to this end the provisions of this act are 211 severable. 212 Section 3. This act applies retroactively. However, this 213 act does not apply in a civil action against a particular named 214 health care provider which is commenced before the effective 215 date of this act. 216 Section 4. This act shall take effect upon becoming a law.