Florida Senate health-care liability bill draws AARP criticism, alternate House proposal
(The Center Square) – The AARP is urging lawmakers to reject a proposed Florida bill extending COVID-19 liability protections to nursing homes and assisted care facilities (ALFs), warning the measure “would further erode the rights of older Floridians to seek redress for negligence and abuses endured in these facilities during the COVID-19 pandemic.”
“The death toll from COVID-19 in our nursing homes is a national disgrace,” AARP State Director Jeff Johnson said in a statement. “More than 9,000 Florida longterm care residents have already died – alone and afraid, without family by their sides. In numerous cases, facilities may have contributed to those deaths and other harms by their lack of care or abuse.”
Senate Bill 74, filed by Senate Judiciary chair Jeff Brandes, R-St. Petersburg, would extend protections to health care providers that “substantially” follow government-issued standards. Plaintiffs must prove providers acted with “gross negligence or intentional misconduct” to be liable.
Filed Feb. 3, SB 74 faces its first hearing before the Senate Judiciary Committee Wednesday. It must also pass through the Senate Health Policy and Rules committees to reach the chamber floor when the 60-day 2021 legislative session begins March 2.
“Now the Florida Legislature would strip from grieving families the right to seek justice for deceased and injured loved ones who may have been hurt or killed by negligent care,” Johnson said.
SB 74 would allow plaintiffs one year to bring a COVID-19-related claim after a death, hospitalization or diagnosis. The protections are effective until one year after public health emergency declarations expire.
Under the bill, “A complaint must be pled with particularity by alleging facts in sufficient detail to support each element of the claim. A court must dismiss the plaintiff’s lawsuit if it is not sufficiently detailed.”
SB 74 does not have a House companion, but it does have an alternate proposal filed Monday by the chamber’s Health & Human Services Committee, PCB HHS 21-01.
Like SB 74, the House proposal would require plaintiffs to file complaints within one year, but PCB HHS 21-01 would apply to medical and malpractice claims against nursing homes and ALFs, and to COVID-19 negligence cases against health-care providers, including physicians, pharmacies and clinical laboratories.
SB 74 more narrowly defines COVID-19 lawsuits as claims “pled as negligence, breach of contract or otherwise” that must demonstrate “health-care providers failed to follow clinical or government-issued health standards or guidance.”
The House proposal affords more judicial discretion, allowing judges to determine if defendants made a “good faith effort,” and requires plaintiffs to first obtain an affidavit from a physician attesting the claim was the result of the defendant’s actions. SB 74 does not impose such a requirement.
The Florida Health Care Association (FHCA), the state’s largest nursing home association, lauded SB 72 when Brandes filed it and offered similar praise for the House bill Monday.
“Lawsuits are not the remedy to ensuring high quality care,” FHCA President/CEO Emmett Reed said. “They simply divert precious resources away from our care centers and send a dangerous message to the health care heroes on the front lines – that the clinical, life-saving decisions they made to protect residents will be used against them.”
The bills are separate from a broader package of pandemic protections for businesses, nonprofits, schools and religious institutions in a fast-tracked companion Senate-House bill.
SB 72, also filed by Brandes, must pass through a Feb. 15 hearing before the Senate Commerce & Tourism Committee and then before the Rules Committee before reaching the floor.
The House version, HB 7, filed by Rep. Lawrence McClure, R-Dover, awaits a final hearing before the House Judiciary Committee and is likely to be ready for adoption on the House floor in March.
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