Barriers to lawsuits over alleged COVID exposure for workers, patients headed for governor’s desk

Colleen Burton, chair of the Health and Human Services Committee, argues for limits on COVID liability litigation on the House floor on March 26, 2021. Source: Screenshot/Florida Channel

Legislation that would make it harder to sue businesses, charities, schools, health care providers, and churches for exposing everyday workers, customers, and patients to COVID-19 passed its last major vote on the House floor on Friday by a margin of 83-31.

The House sent the measure back to the Senate, which has already approved it, for delivery to Gov. Ron DeSantis for his expected signature.

The chamber debated the measure for only about 40 minutes, notwithstanding the depth of opposition by trade unions, progressive organizations, trial lawyers, and Democrats who represent those interests.

Supporters pitched the bill (SB 72) as providing reasonable protection from harassing lawsuits against enterprises struggling in the COVID economy.

“SB 72 provides limited liability protection to those entities in Florida that tried day after day to do what they were told they needed to do. Senate Bill 72 protects Floridians from those who willfully disregarded such guidance,” said Republican Colleen Burton, chair of the Health and Human Services Committee.

“The future of Florida depends on the ability of our businesses and heath care providers to stay in business and to provide care to all of us,” she said.

Democrats, however, argued the measure amounts to blanket immunity for businesses that ignored safety advice and exposed workers, customers, and others to risk.

Democrat Carlos Guillermo Smith of Orange County argued the bill signals that “negligence is OK.”

“It’s not OK. I understand the anxiety around being sued for screwing up, but that is a healthy anxiety. That is an anxiety that motivates our health care providers to do it right,” Smith said.

The bill requires people alleging exposure to COVID to state specifically how it happened; submit a physician affidavit backing their story; and demonstrate the business failed to make a good faith effort to comply with “authoritative or controlling government-issued health standards or guidance.”

As for health care providers, they’d be protected against claims including failure to diagnose COVID, provision of experimental treatments, delay because of the pandemic of unrelated procedures, or any harm caused by lack of protective equipment or staff during the crisis.

Plaintiffs in these cases would not need physician affidavits but would have to establish that the facility committed gross negligence or intentional misconduct. Defendants could prevail if they demonstrate by the greater weight of the evidence that they acted in good faith.

Anna Eskamani, also an Orange County Democrat, complained that the Legislature has done little in terms of direct aid to struggling businesses or unemployed workers.

“And yet here we stand, looking to protect, in my perspective, corporations more than people,” she said.

Florida has come as far as it has in managing the pandemic because of the sacrifices of medical professionals and their facilities, plus small businesses, said Republican William Robinson Jr., who represents parts of Manatee and Sarasota counties.

“They all did this and put in jeopardy their personal health. The health care businesses were operating in this fog with inconsistent rules, direction, and policy. This was all done in the midst of the world’s greatest health-care battle in 100 years,” Robinson said.

Democrat Geraldine Thompson of Orange County predicted that doctors won’t provide those affadavits, in which they would have to swear that a defendant’s acts of negligence or omission caused a specific infection.

“If you can’t get the physician’s affidavit, you block access to the courts,” she said.

Thompson also complained that the bill is vague regarding the standards businesses must meet to justify dismissal of a lawsuit.

“It’s scout’s honor. It’s pinky swear. And the judge is supposed to decide that the business has made a good-faith effort. And then it’s the judge who makes the decision rather than a jury, while we have a constitutional right to trial by jury,” she said.

“When did we begin to delegate the role of fact finding to the judge rather than to a jury?”