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.
   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,
   95  Be It Enacted by the Legislature of the State of Florida:
   97         Section 1. Section 768.381, Florida Statutes, is created to
   98  read:
   99         768.381COVID-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.
  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.