Advocates dismayed over bill protecting health-care facilities from COVID lawsuits

Advocates for senior citizens in long-term care facilities are dismayed that Florida Gov. Ron DeSantis signed a bill earlier this week that will block lawsuits against businesses and health-care providers for coronavirus-related issues. 

“I’m just trying to digest this atrocity,” said Brian Lee, director of Families For Better Care. “It’s so sad for the residents and their families.”

Florida Senate Bill 72 was a top priority for GOP legislative leaders who had been pressed to shield businesses from lawsuits since the beginning of the pandemic. It was the first bill from the 2021 legislative session that DeSantis signed into law.

The law provides protections to businesses across the state, including nursing homes and assisted-living facilities that were closed to visitors for nearly six months. But the law, which took effect immediately, will last for only one year. Lawmakers would have to pass additional legislation to extend the protections beyond March 29, 2022.

“We don’t want to be in a situation where people are scared of being sued just for doing normal things,” DeSantis said at the signing. “We worked very early on to look and see ways we could provide some certainty for both business and health-care providers. This was obviously a top priority for many of us up here.”

More:Florida Gov. DeSantis targets vaccine passports, OKs COVID liability protections

More:Proposed Senate Bill 74 would block COVID lawsuits against Florida health-care providers

State Sen. Jeff Brandes (R-St. Petersburg), who filed the bill, said in a previous interview with The News-Journal before the bill started in the Senate, that without it there will be a "tidal wave" of coronavirus-related lawsuits.

“Unless gross negligence can be proven, health-care providers should have some protection,” Brandes said last week. “Without this legislation, we will see thousands upon thousands of lawsuits that could disrupt the care of loved ones going forward.”

Brandes did not return requests for comment earlier this week. 

The law establishes new rules about personal-injury lawsuits related to COVID-19. Basically, unless a plaintiff is alleging medical malpractice or violations of nursing-home residents rights, they will be required to provide signed affidavits from physicians stating that the defendants caused the injuries or damages.  

Business owners would be immune from liability if courts determine they made good-faith efforts to substantially comply with government-issued health standards or guidance.

In pursuing COVID-19 medical malpractice claims or nursing home-related claims, plaintiffs aren't required to obtain physician affidavits.

But they would be required to prove that the health-care provider's actions were grossly negligent, which is a higher legal threshold. Health-care providers who substantially complied with authoritative or applicable government-issued health standards or guidance related to COVID-19 would also have immunity.

In Volusia County, families of six Ormond Beach Opis Coquina Center residents have filed wrongful death lawsuits against the facility, accusing the Ormond Beach facility of failing to protect their loved ones from COVID infections, according to the complaints and a Morgan & Morgan attorney. 

More:Families of six Ormond Beach Opis Coquina Center residents sue over COVID deaths

The lawsuits involve six Opis Coquina residents who died after the coronavirus became a nationwide pandemic in March 2020. Two of the lawsuits specifically state the two residents were positive for the coronavirus when they died.

The other four lawsuits don’t mention the coronavirus, but say the residents had infections. But a spokeswoman for Morgan & Morgan, which filed those lawsuits, said the four people were also positive for the coronavirus when they died.

Morgan & Morgan did not respond to messages asking for comment on how the new law, which is retroactive, will impact the current lawsuits filed against the facility. 

As of Tuesday, 11,040 residents and staff members of long-term care facilities statewide have died from the virus, according to data collected by the Florida Department of Health. 

While Lee said the passing of the bill is tragic, it’s not unexpected or surprising.

“I was holding out hope the governor, based on his actions and concerns with what was happening in long-term care facilities throughout this pandemic, would potentially veto this bill,” Lee said. “Instead he’s giving this immunity deal to the facilities. Providers win and residents lose.”

Originally, two bills were in the senate for consideration. Senate Bill 72 focused exclusively on businesses, while Senate Bill 74 focused on health care providers. Before making its way to the Florida House, the two were combined under Senate Bill 72. 

It’s possible that combining the two bills made it easier to pass, according to Jeff Johnson, AARP Florida director.

“When there is a bill this big, there’s a good chance that everyone in the legislature has pieces of it that they love and pieces that they don’t like,” Johnson said. "Often that’s the strategy to make it so big with items that (it) must pass.”

The coronavirus pandemic has shed a light on issues, such as infection control, that have plagued long-term care facilities for years, according to Johnson. 

But instead of taking advantage of the opportunity to discuss and address those issues, lawmakers passed Senate Bill 72, which Johnson said is disappointing. 

“Coming out of COVID, people were focused on nursing homes for the first time,” Johnson said. “There’s the opportunity to have a conversation about what was happening and what could be improved. Instead of that, all we have to show so far is nothing that addresses those systemic failures but a free pass for facilities.”

It’s unclear what will happen with current lawsuits filed against long-term care facilities, according to Lee. But what he does know is that families won’t be able to get the closure they seek. 

“While not having an avalanche of lawsuits will allow these facilities to not close and the elderly won’t get kicked out of the facilities, in reality you just hung a bunch of elderly folks out to dry,” Lee said. "Families will not get clear answers now with what happened to their loved ones throughout this pandemic. If there was wrongdoing, this prevents families from seeking legal action for the wrongdoing.

"It just makes Florida an unfriendly elderly state.”

Christine Sexton, News Service of Florida, contributed to this report