On March 29, 2021, Florida Governor Ron DeSantis signed a COVID-19 civil liability bill into law, creating Florida Statute sections 768.38 and 768.381. The statute provides heightened legal protections against liability arising from the COVID-19 pandemic for most business, educational, religious, and governmental entities in the State of Florida by imposing a high pleading standard and requiring certain specified preliminary findings before a new COVID-19-related claim can proceed in Court.
Who Does This Statute Impact?
Proclaimed to be the nation’s most aggressive COVID-19 liability shield law to-date, this new statute extends protections to the following entities and institutions that make “good-faith efforts” to follow government health guidelines:
- business entities (including charitable organizations and non-profit organizations);
- educational institutions (including pre-schools, elementary, middle, and secondary schools, career centers, and post-secondary public and non-public institutions);
- governmental entities (including the state or any political subdivision thereof—inclusive of the executive, legislative and judicial branches—as well as counties, municipalities, districts, authorities, boards, and commissions);
- religious institutions; and
- health care providers (including clinical laboratories certified by the Centers for Medicare and Medicaid Service; federally qualified health centers; any site providing health care services that was established for the purpose of responding to the COVID-19 pandemic pursuant to any federal or state order, declaration, or waiver; health care practitioners; health care professionals as defined by statute; home health aides; continuing care facilities; and pharmacies).
What Is The Effect of This Statute?
Seeking to limit exposure and liability for these businesses and institutions from lawsuits resulting from COVID-19, section 768.38 raises the standard of proof for COVID-19-related lawsuits and requires that plaintiffs prove by clear and convincing evidence that a defendant acted with gross negligence. It also requires plaintiffs to obtain affidavits from physicians actively licensed in Florida who attest to the physician’s belief, within a reasonable degree of medical certainty, that any alleged acts or omissions caused damages, injuries, or deaths. A determination by the court of a defendant’s good faith efforts to comply with government-issued health standards or guidelines will immunize the defendant from civil liability. Where cases arise from COVID-19–related circumstances, section 768.38 provides that claims must be brought within one year after the cause of action accrues or within one year after the effective date of the legislation if the cause of action accrued before the effective date.
What About Health Care Providers?
With respect to health care providers, section 768.381 does not require an affidavit by a physician as a part of a pleading, and in any action against a health care provider for a COVID-19-related claim, the plaintiff must prove by the greater weight of the evidence that the health care provider was grossly negligent or engaged in intentional misconduct. In addition to affirmative defenses already recognized by law, section 768.381 provides a framework of affirmative defenses available to health care providers relating to their substantial compliance with government-issued health standards. Section 768.381 further provides that an action for a COVID-19-related claim against a health care provider must be brought within one year after the later of the date of death due to COVID-19, hospitalization related to COVID-19, or the first diagnosis of COVID-19. For claims arising from a delayed or canceled procedure, a lawsuit must be brought within one year after the cause of action accrues.
How Does This Statute Apply?
This statute purports to apply retroactively and prospectively. However, it does not apply in a civil action against a defendant that actually commenced prior to March 29, 2021. Undoubtedly, challenges may later arise as to whether the Legislature may affect causes of action that accrued before the effective date of the legislation, but which had not been filed.
What Is The Take-Away?
Given the language of Florida Statute section 768.38, the documentation of good faith efforts to substantially comply with authoritative or controlling COVID-19-related governmental health guidelines and standards will provide the best defense for business, educational, religious, health care providers, and governmental entities in the State of Florida when confronted with any COVID-19-related litigation that may arise in the future.
The information contained in this document does not constitute legal advice.
