As a bill to shield health care workers and facilities from COVID-19 legal liability advances in the Senate, supporters warn that plaintiffs’ attorneys are getting such lawsuits in the pipeline quickly to evade the bill’s protections.
“I think there’s going to be a rush to the courthouse,” Robin Khanal, an Orlando attorney who represents nursing homes, assisted-living facilities and hospitals, told the Florida Record.
Senate Bill 74, authored by state Sen. Jeff Brandes (R-St. Petersburg), just passed the Health Policy Committee on a 5-4 vote. The bill would require COVID-19-related lawsuits to show that a defendant was grossly negligent or engaged in willful misconduct in applying pandemic safety guidance.
The legislation would cover coronavirus-related lawsuits that occur up until a year after the designated end of the COVID-19 crisis or any countrywide emergency order issued by the federal government. In its current form, however, SB 74 would not be retroactive for civil litigation against a health care provider filed before the bill takes effect.
“It’s pretty clear that they’re not going to apply this retroactively to any cases where a complaint has been filed with a circuit court,” Khanal said.
Khanal began getting notices of intent to sue health care facilities in May of 2020. That process initiates a 75-day period of investigation as part of the statutory process – at the end of which it had been typical for the parties to meet for mediation, he said.
“That’s not happening anymore,” Khanal said. “Collectively, what I understand is they’re not going to wait. They’re going to file the lawsuits and get them in litigation.”
Opponents of such COVID-19 legal liability protections contend that immunizing nursing homes and other health care facilities could end up causing public harm by taking away legal incentives to take robust precautions against the virus.
As of this month, 34 states have put in place some sort of liability protections for health care facilities or professionals for pandemic-related legal issues, according to a legislative analysis of the bill.
In the time it takes for the legislature to further discuss and then pass SB 74 – and then for the governor to sign it into law – many coronavirus-related claims will have been filed, leaving many defendants without the bill’s protections, Khanal said.
“These laws do provide great protections, but I still think we will see litigation associated with COVID-19 against nursing homes and assisted-living facilities,” he said.