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Injury Attys Seething Over COVID-19 Medical Immunity Push
Injury Attys Seething Over COVID-19 Medical Immunity Push
Law360 (April 28, 2020, 8:16 PM EDT) — Plaintiffs injury attorneys are blasting lobbyists for the health care and insurance industries who they say are taking advantage of the COVID-19 pandemic to push for civil and criminal immunity for hospital chains and nursing home companies, to the detriment of patients injured by medical negligence.
A number of hard-hit states such as New York, New Jersey and Massachusetts have already enacted legislation conferring health care provider immunity, but Florida and California — both among the top 10 states in terms of total deaths — have not.
Health care and insurance lobbyists are clamoring for Florida Gov. Ron DeSantis and California Gov. Gavin Newsom to issue executive orders shielding health care providers from civil and criminal liability in order to help physicians and nurses treat patients without the fear of getting sued.
Plaintiffs attorneys said that while medical professionals on the front lines are rightly being exalted for their work, the for-profit nursing home operators and health care systems are using that goodwill to further their tort reform agenda and protect their bottom line.
“The insurance lobby is always seeking any and every opportunity to continue to collect premiums while paying out as little as they possibly can,” said Daniel Harwin, a medical malpractice plaintiffs attorney at Freedland Harwin Valori PL in Fort Lauderdale.
Harwin said granting “blanket immunity” for health care providers would set a “terrible precedent which would prevent hospitals and personnel from putting the appropriate protocols in place.”
The Florida Health Care Association, a group representing a majority of the state’s nearly 700 nursing homes, sent a letter to the governor earlier this month requesting both civil and criminal immunity for any health care treatment affected by the pandemic in the absence of gross negligence or recklessness.
California health care industry groups such as the California Hospital Association and California Assisted Living Association sent a letter April 9 to Newsom asking him to issue an executive order granting civil and criminal immunity to all health care providers, including nursing homes, for all treatment rendered during the COVID-19 state of emergency aside from willful misconduct.
Representatives for the Florida and California governors did not immediately respond to requests for comment.
Industry groups aren’t just targeting these two states, attorneys said. The insurance lobby is sending letters to governors in every state asking them to issue executive orders granting immunity, according to personal injury plaintiffs attorney Nicholas C. Rowley of Carpenter Zuckerman & Rowley in Los Angeles. But here’s the rub, Rowley said: The orders would confer immunity not just for coronavirus treatment but for any medical treatment.
“Which means if they remove the wrong limb or operate on the wrong side of the body, they can’t get sued. What they are trying to do is rotten,” he said. “They are using the coronavirus to slip something in to deprive patients of their civil right to have a jury hear their case when a health care provider or medical institution is negligent, no matter what the negligence is.”
However, defense attorneys such as Andrew S. Bolin of Bolin Law Group, who represents the Florida Justice Reform Institute, challenged that notion, saying they are only asking for temporary measures to get health care professionals on the front lines to fight the pandemic.
“It’s unfortunate to suggest a political or agenda motive behind passing protections for front-line providers who are risking their lives to treat patients in an environment that we haven’t seen in this country since 1918,” he said, referring to the Spanish flu pandemic. “This is about providing protection for front-line providers who don’t need the threat of litigation hanging over their heads when they are making decisions about how to best treat patients during a pandemic.”
Bolin noted that coronavirus-related immunity orders and legislation would allow cases involving gross negligence to move forward, which “shows that these laws are not meant to protect every practitioner in every scenario.”
But Steve Watrel of Coker Law, a Jacksonville attorney who specializes in suing nursing homes, said proving gross negligence is difficult because it has an extremely high standard.
“It’s close to proving manslaughter, for example, and it is not easy to prove,” he said. “They know that, and that’s why they put it in there. The reality is that that’s a high burden.”
Delphine O’Rourke, a Duane Morris LLP partner who defends health care organizations, said that given the uncertainty of the novel coronavirus and its long-term effects, lobbyists would be remiss not to pursue immunity protections for health care providers.
“The long-term impacts aren’t known. No one had any idea 9/11 first responders would suffer the diseases and mental health challenges they suffered,” she said. “If you’re in the risk mitigation business, this is a true unknown and you don’t know if it peaks at 300,000 deaths in the U.S. So it is their business to say we have no idea what it’s going to look like … if they didn’t [push for immunity] it would be surprising.”
However, Leslie M. Kroeger, a Cohen Milstein Sellers & Toll PLLC partner and president of the Florida Justice Association, said the insurance lobby’s immunity efforts are a “dog whistle” issue that is being driven by the goal of saving money for insurance companies.
“I get it, that’s their job,” she said. “It doesn’t mean that it’s right for the people.”
Kroeger added that getting protections for doctors, nurses and other health care workers on the front lines is an admirable goal but ignores the fact that the Florida insurance lobby has been pushing tort reform for decades.
“Those men and women are heroes, but the people above them who administer and run these hospitals and nursing homes have been at this for a while, and they are asking for immunity for these companies, not individuals,” she said.
While the plaintiffs attorneys who spoke to Law360 largely agreed that they would likely not pursue coronavirus-related litigation against front-line medical workers, they said nursing homes may be fair game given institutional failures at many “bad actor” facilities over the years, particularly the understaffing of homes. Kroeger said lobbyists have long tried to get Florida lawmakers to relax nursing home staffing requirements.
“If companies find themselves with short staff and lack of resources, they have put themselves in that position,” she said. “They’ve [understaffed] consistently for the last 20 years, so for them to now cry ‘we need help’ is just unfathomable to me. It’s as though they think people who’ve been paying attention have a short memory, but we don’t.”
Coker Law’s Watrel noted that the nursing home industry in Florida is asking for not only civil immunity but also criminal immunity.
“So if they decide not to feed residents, they would be protected,” he said, characterizing Florida’s gross negligence bar as so high a nursing home can “essentially get away with murder.”
Watrel said Florida nursing homes, many of which are already understaffed, are seeing further staffing shortages as some low-paid certified nursing assistants are not showing up for work, which affects nursing home residents’ basic care needs.
“People need to be turned, fed and hydrated, assisted to the bathroom,” he said. “How would you like to go 30 days without having your teeth brushed or having a shower? To say it’s a coronavirus emergency is just a poor excuse. The trade organizations are being opportunistic and taking advantage of the fear and uncertainty to try and better themselves.”
–Editing by Brian Baresch and Emily Kokoll.
Health Care Providers Seek Legal Protections Amid COVID-19
Health Care Providers Seek Legal Protections Amid COVID-19
“An executive order is important to send a message to physicians that the state of Florida backs them and respects what they are doing [and] agrees that they should not be sued in the future for any liability issues … for the handling of the COVID-19 crisis,” says William Large, president of the Florida Justice Reform Institute.
By Christine Sexton | April 24, 2020 at 09:45 AM
Florida Justice Reform Institute President William W. Large/courtesy photo
As Gov. Ron DeSantis looks to open the state back up, he is being pushed by health-care providers to shield them from lawsuits stemming from the delivery of care during the COVID-19 pandemic.
The state’s largest physician, hospital and nursing-home associations are asking DeSantis to issue executive orders that would protect their members from lawsuits because of actions that occurred — or didn’t occur — during the crisis. Several groups even provided a fully worded proposal to the governor this week.
DeSantis has remained silent on whether he will follow the lead of other governors who have provided immunity to health-care providers. The governor’s office did not answer questions about the requests.
The Florida Hospital Association and other groups sent a letter Wednesday to DeSantis that voiced worries about potential lawsuits against frontline workers. Among the groups signing onto the letter were the Florida Nurses Association, the Florida Society of Anesthesiologists, the Florida Nurse Practitioners Network, the Florida Chamber of Commerce and Associated Industries of Florida.
“While the battle rages, it is unfortunate, but necessary, that steps be taken to avoid another crisis — a proliferation of inappropriate and unwarranted lawsuits,” the letter said. “In the future, after the current awareness of the incessant harsh realities confronting patients and providers has faded, there may be some who would seek to take advantage of the COVID-19 crisis by suing providers based on applications of standards of care that would fail to account for the special challenges presented by a devastating pandemic.”
The Florida Medical Association, the Florida Osteopathic Medical Association and the Florida Justice Reform Institute last month were the first organizations to formally request protections from medical-malpractice lawsuits for care provided during the COVID-19 crisis.
“An executive order is important to send a message to physicians that the state of Florida backs them and respects what they are doing [and] agrees that they should not be sued in the future for any liability issues … for the handling of the COVID-19 crisis,” said William Large, president of the Florida Justice Reform Institute, which is backed by business groups and lobbies for lawsuit restrictions.
Signed by Large, Florida Medical Association President Ronald Giffler and Florida Osteopathic Medical Association President Eric Goldsmith, a March 26 letter recommended that DeSantis issue an executive order that would limit liability; provide sovereign immunity protections for doctors who were complying with a DeSantis emergency order that shut down optional health-care services; or amend sections of the state’s so-called “Good Samaritan Act” so it would apply to physicians working during the pandemic.
Nursing homes, meanwhile, are seeking protections from cases that can be filed against them for violating nursing-home residents’ rights. The Florida Health Care Association sent a letter to DeSantis on April 3 asking for immunity from civil and criminal liability for “any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” during the pandemic.
Spokeswoman Kristen Knapp said the nursing-home association has not received a response. DeSantis told reporters last week that, “I think it’s under review. I haven’t made any decisions yet and we’ll look.”
The request remains pending as the number of COVID-19 cases at nursing homes and other long-term care facilities continues to climb. As of Thursday morning, 2,386 COVID-19 cases had been reported involving residents or staff members at 335 long-term care facilities across the state. Those cases had a more than 10% mortality rate.
Agency for Health Care Administration Secretary Mary Mayhew said the state has made “monumental efforts” to help the long-term care industry respond to the virus. Mayhew said last week that the infection prevention and control needed to combat the virus “frankly exceeded the level of infection prevention typically associated with our nursing homes and assisted living facilities.”
The state last week also suspended the licenses of two nursing-home administrators in Jefferson County because of alleged deficient care.
Any attempt to shield nursing homes and other providers from lawsuits, however, likely will face fierce opposition from groups such as plaintiffs’ attorneys. Jacksonville attorney Steve Watrel said now is not the time to grant broad immunity.
“The court system exists for a reason,” Watrel said. “The court system exists to ferret out meritorious from non-meritorious claims. And broad brushes of immunity are not only not appropriate right now but would lead to an increase of injury and death. Because, unfortunately, the reality of human nature is, without the threat of accountability, responsibility dwindles.”
Knapp said nursing homes have been receiving “conflicting guidance from federal, state and local government entities” and that COVID-19 has required facilities to take actions they ordinarily would not take. For instance, Knapps said homes in Broward County are being told by local health department officials to keep residents in their rooms with doors closed, which would “be a violation of health care standards on a normal day.”
“In the midst of this unprecedented crisis, long term caregivers should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making these types of tough decisions while trying to comply with government directives,” she said in a statement to The News Service of Florida.
Some other states have provided legal protections for care provided during the pandemic. For example, governors in Arkansas, Arizona, Connecticut, Illinois, Kentucky, Massachusetts, New Hampshire, Nevada, New York, Vermont and Wisconsin have issued orders protecting physicians from lawsuits, according to the American Medical Association.
Knapp said governors in Arkansas, Arizona, Connecticut, Georgia, Hawaii, Illinois, Michigan, New Jersey, New York, Rhode Island and Wisconsin issued executive orders limiting lawsuits against nursing homes. Also, lawmakers in New York, New Jersey and Kentucky passed legislation, she said
But shielding doctors, hospitals and nursing homes from lawsuits has long been a controversial issue in Florida, with the issue flaring again in recent years.
Interest in medical-malpractice protections was refueled by Florida Supreme Court rulings in 2014 and 2017 that struck down limits on non-economic damages in malpractice lawsuits.
The state House considered a far-reaching malpractice bill in 2019 that would have addressed the court rulings. But the proposal cleared only one panel in the House and never was considered by the Senate.
Jacksonville attorney Chris Nuland, who lobbies for physician groups, said other issues, such as expanded practice authority for pharmacists and advanced practice registered nurses, dominated his time during the 2020 session. Changes to the malpractice system were “out there on the scene, although no one really went after it this year,” he said.
Leading up to the pandemic, the state’s medical-malpractice insurance market was profitable and stable. Florida ranked fourth in the nation in terms of premiums written with roughly $562 million in 2018, according to a Florida Office of Insurance Regulation report.
Sixty-five percent of the premiums, the report shows, came from physicians’ policies. On average, the report noted, medical malpractice rates increased for physicians by 3.5 percent.
The last time the Legislature delved into nursing home lawsuits was 2014, when it agreed to pass legislation that prevented “passive” investors from being named as defendants in cases related to injuries suffered by nursing-home residents. The bill also made it harder to sue nursing homes for punitive damages, requiring courts to hold evidentiary hearings before residents could pursue punitive-damage claims.
Christine Sexton reports for the News Service of Florida.
Health care providers seek legal protections from lawsuits stemming from delivery of care during pandemic
Health care providers seek legal protections from lawsuits stemming from delivery of care during pandemic
Christine Sexton, News Service of Florida Published 2:53 p.m. CT April 24, 2020 | Updated 4:27 p.m. CT April 24, 2020
As Gov. Ron DeSantis looks to open the state back up, he is being pushed by health-care providers to shield them from lawsuits stemming from the delivery of care during the COVID-19 pandemic.
The state’s largest physician, hospital and nursing-home associations are asking DeSantis to issue executive orders that would protect their members from lawsuits because of actions that occurred — or didn’t occur — during the crisis. Several groups even provided a fully worded proposal to the governor this week.
DeSantis has remained silent on whether he will follow the lead of other governors who have provided immunity to health-care providers. The governor’s office did not answer questions about the requests.
The Florida Hospital Association and other groups sent a letter Wednesday to DeSantis that voiced worries about potential lawsuits against front-line workers. Among the groups signing onto the letter were the Florida Nurses Association, the Florida Society of Anesthesiologists, the Florida Nurse Practitioners Network, the Florida Chamber of Commerce and Associated Industries of Florida.
“While the battle rages, it is unfortunate, but necessary, that steps be taken to avoid another crisis — a proliferation of inappropriate and unwarranted lawsuits,” the letter said. “In the future, after the current awareness of the incessant harsh realities confronting patients and providers has faded, there may be some who would seek to take advantage of the COVID-19 crisis by suing providers based on applications of standards of care that would fail to account for the special challenges presented by a devastating pandemic.”
The Florida Medical Association, the Florida Osteopathic Medical Association and the Florida Justice Reform Institute last month were the first organizations to formally request protections from medical-malpractice lawsuits for care provided during the COVID-19 crisis.
“An executive order is important to send a message to physicians that the state of Florida backs them and respects what they are doing (and) agrees that they should not be sued in the future for any liability issues … for the handling of the COVID-19 crisis,” said William Large, president of the Florida Justice Reform Institute, which is backed by business groups and lobbies for lawsuit restrictions.
Signed by Large, Florida Medical Association President Ronald Giffler and Florida Osteopathic Medical Association President Eric Goldsmith, a March 26 letter recommended that DeSantis issue an executive order that would limit liability; provide sovereign immunity protections for doctors who were complying with a DeSantis emergency order that shut down optional health-care services; or amend sections of the state’s so-called “Good Samaritan Act” so it would apply to physicians working during the pandemic.
Nursing homes, meanwhile, are seeking protections from cases that can be filed against them for violating nursing-home residents’ rights. The Florida Health Care Association sent a letter to DeSantis on April 3 asking for immunity from civil and criminal liability for “any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” during the pandemic.
Spokeswoman Kristen Knapp said the nursing-home association has not received a response. DeSantis told reporters last week that, “I think it’s under review. I haven’t made any decisions yet and we’ll look.”
The request remains pending as the number of COVID-19 cases at nursing homes and other long-term care facilities continues to climb. As of Friday morning, 2,576 COVID-19 cases had been reported involving residents or staff members at 335 long-term care facilities across the state. Those cases had a nearly 11% mortality rate.
Agency for Health Care Administration Secretary Mary Mayhew said the state has made “monumental efforts” to help the long-term care industry respond to the virus. Mayhew said last week that the infection prevention and control needed to combat the virus “frankly exceeded the level of infection prevention typically associated with our nursing homes and assisted living facilities.”
The state last week also suspended the licenses of two nursing-home administrators in Jefferson County because of alleged deficient care.
Any attempt to shield nursing homes and other providers from lawsuits, however, likely will face fierce opposition from groups such as plaintiffs’ attorneys. Jacksonville attorney Steve Watrel said now is not the time to grant broad immunity.
“The court system exists for a reason,” Watrel said. “The court system exists to ferret out meritorious from non-meritorious claims. And broad brushes of immunity are not only not appropriate right now but would lead to an increase of injury and death. Because, unfortunately, the reality of human nature is, without the threat of accountability, responsibility dwindles.”
Knapp said nursing homes have been receiving “conflicting guidance from federal, state and local government entities” and that COVID-19 has required facilities to take actions they ordinarily would not take. For instance, Knapps said homes in Broward County are being told by local health department officials to keep residents in their rooms with doors closed, which would “be a violation of health care standards on a normal day.”
“In the midst of this unprecedented crisis, long term caregivers should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making these types of tough decisions while trying to comply with government directives,” she said in a statement to The News Service of Florida.
Some other states have provided legal protections for care provided during the pandemic. For example, governors in Arkansas, Arizona, Connecticut, Illinois, Kentucky, Massachusetts, New Hampshire, Nevada, New York, Vermont and Wisconsin have issued orders protecting physicians from lawsuits, according to the American Medical Association.
Knapp said governors in Arkansas, Arizona, Connecticut, Georgia, Hawaii, Illinois, Michigan, New Jersey, New York, Rhode Island and Wisconsin issued executive orders limiting lawsuits against nursing homes. Also, lawmakers in New York, New Jersey and Kentucky passed legislation, she said
But shielding doctors, hospitals and nursing homes from lawsuits has long been a controversial issue in Florida, with the issue flaring again in recent years.
Interest in medical-malpractice protections was refueled by Florida Supreme Court rulings in 2014 and 2017 that struck down limits on non-economic damages in malpractice lawsuits.
The state House considered a far-reaching malpractice bill in 2019 that would have addressed the court rulings. But the proposal cleared only one panel in the House and never was considered by the Senate.
Jacksonville attorney Chris Nuland, who lobbies for physician groups, said other issues, such as expanded practice authority for pharmacists and advanced practice registered nurses, dominated his time during the 2020 session. Changes to the malpractice system were “out there on the scene, although no one really went after it this year,” he said.
Leading up to the pandemic, the state’s medical-malpractice insurance market was profitable and stable. Florida ranked fourth in the nation in terms of premiums written with roughly $562 million in 2018, according to a Florida Office of Insurance Regulation report.
The report shows 65% of the premiums came from physicians’ policies. On average, the report noted, medical malpractice rates increased for physicians by 3.5%.
The last time the Legislature delved into nursing home lawsuits was 2014, when it agreed to pass legislation that prevented “passive” investors from being named as defendants in cases related to injuries suffered by nursing-home residents. The bill also made it harder to sue nursing homes for punitive damages, requiring courts to hold evidentiary hearings before residents could pursue punitive-damage claims.
Health care providers seek legal protections
Health care providers seek legal protections
by Christine Sexton/The News Service of Florida – Thursday, April 23rd 2020
TALLAHASSEE, Fla. — As Gov. Ron DeSantis looks to open the state back up, he is being pushed by health-care providers to shield them from lawsuits stemming from the delivery of care during the COVID-19 pandemic.
The state’s largest physician, hospital and nursing-home associations are asking DeSantis to issue executive orders that would protect their members from lawsuits because of actions that occurred — or didn’t occur — during the crisis. Several groups even provided a fully worded proposal to the governor this week.
DeSantis has remained silent on whether he will follow the lead of other governors who have provided immunity to health-care providers. The governor’s office did not answer questions about the requests.
The Florida Hospital Association and other groups sent a letter Wednesday to DeSantis that voiced worries about potential lawsuits against frontline workers. Among the groups signing onto the letter were the Florida Nurses Association, the Florida Society of Anesthesiologists, the Florida Nurse Practitioners Network, the Florida Chamber of Commerce and Associated Industries of Florida.
“While the battle rages, it is unfortunate, but necessary, that steps be taken to avoid another crisis — a proliferation of inappropriate and unwarranted lawsuits,” the letter said. “In the future, after the current awareness of the incessant harsh realities confronting patients and providers has faded, there may be some who would seek to take advantage of the COVID-19 crisis by suing providers based on applications of standards of care that would fail to account for the special challenges presented by a devastating pandemic.”
The Florida Medical Association, the Florida Osteopathic Medical Association and the Florida Justice Reform Institute last month were the first organizations to formally request protections from medical-malpractice lawsuits for care provided during the COVID-19 crisis.
“An executive order is important to send a message to physicians that the state of Florida backs them and respects what they are doing (and) agrees that they should not be sued in the future for any liability issues for the handling of the COVID-19 crisis,” said William Large, president of the Florida Justice Reform Institute, which is backed by business groups and lobbies for lawsuit restrictions.
Signed by Large, Florida Medical Association President Ronald Giffler and Florida Osteopathic Medical Association President Eric Goldsmith, a March 26 letter recommended that DeSantis issue an executive order that would limit liability; provide sovereign immunity protections for doctors who were complying with a DeSantis emergency order that shut down optional health-care services; or amend sections of the state’s so-called “Good Samaritan Act” so it would apply to physicians working during the pandemic.
Nursing homes, meanwhile, are seeking protections from cases that can be filed against them for violating nursing-home residents’ rights. The Florida Health Care Association sent a letter to DeSantis on April 3 asking for immunity from civil and criminal liability for “any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” during the pandemic.
Spokeswoman Kristen Knapp said the nursing-home association has not received a response. DeSantis told reporters last week that, “I think it’s under review. I haven’t made any decisions yet and we’ll look.”
The request remains pending as the number of COVID-19 cases at nursing homes and other long-term care facilities continues to climb. As of Thursday morning, 2,386 COVID-19 cases had been reported involving residents or staff members at 335 long-term care facilities across the state. Those cases had a more than 10 percent mortality rate.
Agency for Health Care Administration Secretary Mary Mayhew said the state has made “monumental efforts” to help the long-term care industry respond to the virus. Mayhew said last week that the infection prevention and control needed to combat the virus “frankly exceeded the level of infection prevention typically associated with our nursing homes and assisted living facilities.”
The state last week also suspended the licenses of two nursing-home administrators in Jefferson County because of alleged deficient care.
Any attempt to shield nursing homes and other providers from lawsuits, however, likely will face fierce opposition from groups such as plaintiffs’ attorneys. Jacksonville attorney Steve Watrel said now is not the time to grant broad immunity.
“The court system exists for a reason,” Watrel said. “The court system exists to ferret out meritorious from non-meritorious claims. And broad brushes of immunity are not only not appropriate right now but would lead to an increase of injury and death. Because, unfortunately, the reality of human nature is, without the threat of accountability, responsibility dwindles.”
Knapp said nursing homes have been receiving “conflicting guidance from federal, state and local government entities” and that COVID-19 has required facilities to take actions they ordinarily would not take. For instance, Knapps said homes in Broward County are being told by local health department officials to keep residents in their rooms with doors closed, which would “be a violation of health care standards on a normal day.”
“In the midst of this unprecedented crisis, long term caregivers should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making these types of tough decisions while trying to comply with government directives,” she said in a statement to The News Service of Florida.
Some other states have provided legal protections for care provided during the pandemic. For example, governors in Arkansas, Arizona, Connecticut, Illinois, Kentucky, Massachusetts, New Hampshire, Nevada, New York, Vermont and Wisconsin have issued orders protecting physicians from lawsuits, according to the American Medical Association.
Knapp said governors in Arkansas, Arizona, Connecticut, Georgia, Hawaii, Illinois, Michigan, New Jersey, New York, Rhode Island and Wisconsin issued executive orders limiting lawsuits against nursing homes. Also, lawmakers in New York, New Jersey and Kentucky passed legislation, she said
But shielding doctors, hospitals and nursing homes from lawsuits has long been a controversial issue in Florida, with the issue flaring again in recent years.
Interest in medical-malpractice protections was refueled by Florida Supreme Court rulings in 2014 and 2017 that struck down limits on non-economic damages in malpractice lawsuits.
The state House considered a far-reaching malpractice bill in 2019 that would have addressed the court rulings. But the proposal cleared only one panel in the House and never was considered by the Senate.
Jacksonville attorney Chris Nuland, who lobbies for physician groups, said other issues, such as expanded practice authority for pharmacists and advanced practice registered nurses, dominated his time during the 2020 session. Changes to the malpractice system were “out there on the scene, although no one really went after it this year,” he said.
Leading up to the pandemic, the state’s medical-malpractice insurance market was profitable and stable. Florida ranked fourth in the nation in terms of premiums written with roughly $562 million in 2018, according to a Florida Office of Insurance Regulation report.
Sixty-five percent of the premiums, the report shows, came from physicians’ policies. On average, the report noted, medical malpractice rates increased for physicians by 3.5 percent.
The last time the Legislature delved into nursing home lawsuits was 2014, when it agreed to pass legislation that prevented “passive” investors from being named as defendants in cases related to injuries suffered by nursing-home residents. The bill also made it harder to sue nursing homes for punitive damages, requiring courts to hold evidentiary hearings before residents could pursue punitive-damage claims.
https://cbs12.com/news/coronavirus/health-care-providers-seek-legal-protections
Healthcare groups ask Florida governor for legal immunity during COVID-19 pandemic
Healthcare groups ask Florida governor for legal immunity during COVID-19 pandemic
BY CHRISTINE SEXTON NEWS SERVICE OF FLORIDA
APRIL 23, 2020 04:59 PM, UPDATED APRIL 23, 2020 07:12 PM
As Gov. Ron DeSantis looks to open the state back up, he is being pushed by healthcare providers to shield them from lawsuits stemming from the delivery of care during the COVID-19 pandemic.
The state’s largest physician, hospital and nursing-home associations are asking DeSantis to issue executive orders that would protect their members from lawsuits because of actions that occurred — or didn’t occur — during the crisis. Several groups even provided a fully worded proposal to the governor this week.
DeSantis has remained silent on whether he will follow the lead of other governors who have provided immunity to healthcare providers. The governor’s office did not answer questions about the requests.
The Florida Hospital Association and other groups sent a letter Wednesday to DeSantis that voiced worries about potential lawsuits against frontline workers. Among the groups signing onto the letter were the Florida Nurses Association, the Florida Society of Anesthesiologists, the Florida Nurse Practitioners Network, the Florida Chamber of Commerce and Associated Industries of Florida.
“While the battle rages, it is unfortunate, but necessary, that steps be taken to avoid another crisis — a proliferation of inappropriate and unwarranted lawsuits,” the letter said. “In the future, after the current awareness of the incessant harsh realities confronting patients and providers has faded, there may be some who would seek to take advantage of the COVID-19 crisis by suing providers based on applications of standards of care that would fail to account for the special challenges presented by a devastating pandemic.”
The Florida Medical Association, the Florida Osteopathic Medical Association and the Florida Justice Reform Institute last month were the first organizations to formally request protections from medical-malpractice lawsuits for care provided during the COVID-19 crisis.
“An executive order is important to send a message to physicians that the state of Florida backs them and respects what they are doing [and] agrees that they should not be sued in the future for any liability issues … for the handling of the COVID-19 crisis,” said William Large, president of the Florida Justice Reform Institute, which is backed by business groups and lobbies for lawsuit restrictions.
SEEKING SOVEREIGN IMMUNITY FOR DOCTORS
Signed by Large, Florida Medical Association President Ronald Giffler and Florida Osteopathic Medical Association President Eric Goldsmith, a March 26 letter recommended that DeSantis issue an executive order that would limit liability; provide sovereign immunity protections for doctors who were complying with a DeSantis emergency order that shut down optional healthcare services; or amend sections of the state’s so-called “Good Samaritan Act” so it would apply to physicians working during the pandemic.
Nursing homes, meanwhile, are seeking protections from cases that can be filed against them for violating nursing-home residents’ rights. The Florida Health Care Association sent a letter to DeSantis on April 3 asking for immunity from civil and criminal liability for “any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” during the pandemic.
Spokeswoman Kristen Knapp said the nursing home association has not received a response. DeSantis told reporters last week that, “I think it’s under review. I haven’t made any decisions yet and we’ll look.”
The request remains pending as the number of COVID-19 cases at nursing homes and other long-term care facilities continues to climb. As of Thursday morning, 2,386 COVID-19 cases had been reported involving residents or staff members at 335 long-term care facilities across the state. Those cases had a more than 10% mortality rate.
AHCA SAYS COVID-19 EXCEEDS NORMAL SCENARIOS
Agency for Health Care Administration Secretary Mary Mayhew said the state has made “monumental efforts” to help the long-term care industry respond to the virus. Mayhew said last week that the infection prevention and control needed to combat the virus “frankly exceeded the level of infection prevention typically associated with our nursing homes and assisted living facilities.”
The state last week also suspended the licenses of two nursing-home administrators in Jefferson County because of alleged deficient care.
Any attempt to shield nursing homes and other providers from lawsuits, however, likely will face fierce opposition from groups such as plaintiffs’ attorneys. Jacksonville attorney Steve Watrel said now is not the time to grant broad immunity.
“The court system exists for a reason,” Watrel said. “The court system exists to ferret out meritorious from non-meritorious claims. And broad brushes of immunity are not only not appropriate right now but would lead to an increase of injury and death. Because, unfortunately, the reality of human nature is, without the threat of accountability, responsibility dwindles.”
Knapp said nursing homes have been receiving “conflicting guidance from federal, state and local government entities” and that COVID-19 has required facilities to take actions they ordinarily would not take. For instance, Knapps said homes in Broward County are being told by local health department officials to keep residents in their rooms with doors closed, which would “be a violation of health care standards on a normal day.”
“In the midst of this unprecedented crisis, long term caregivers should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making these types of tough decisions while trying to comply with government directives,” she said in a statement to The News Service of Florida.
ACTIONS IN OTHER STATES
Some other states have provided legal protections for care provided during the pandemic. For example, governors in Arkansas, Arizona, Connecticut, Illinois, Kentucky, Massachusetts, New Hampshire, Nevada, New York, Vermont and Wisconsin have issued orders protecting physicians from lawsuits, according to the American Medical Association.
Knapp said governors in Arkansas, Arizona, Connecticut, Georgia, Hawaii, Illinois, Michigan, New Jersey, New York, Rhode Island and Wisconsin issued executive orders limiting lawsuits against nursing homes. Also, lawmakers in New York, New Jersey and Kentucky passed legislation, she said
But shielding doctors, hospitals and nursing homes from lawsuits has long been a controversial issue in Florida, and it flared up again in recent years.
Interest in medical-malpractice protections was refueled by Florida Supreme Court rulings in 2014 and 2017 that struck down limits on non-economic damages in malpractice lawsuits.
The state House considered a far-reaching malpractice bill in 2019 that would have addressed the court rulings. But the proposal cleared only one panel in the House and never was considered by the Senate.
Jacksonville attorney Chris Nuland, who lobbies for physician groups, said other issues, such as expanded practice authority for pharmacists and advanced practice registered nurses, dominated his time during the 2020 session. Changes to the malpractice system were “out there on the scene, although no one really went after it this year,” he said.
Leading up to the pandemic, the state’s medical-malpractice insurance market was profitable and stable. Florida ranked fourth in the nation in terms of premiums written with roughly $562 million in 2018, according to a Florida Office of Insurance Regulation report.
Sixty-five percent of the premiums, the report shows, came from physicians’ policies. On average, the report noted, medical malpractice rates increased for physicians by 3.5%.
The last time the Legislature delved into nursing home lawsuits was 2014, when it agreed to pass legislation that prevented “passive” investors from being named as defendants in cases related to injuries suffered by nursing-home residents. The bill also made it harder to sue nursing homes for punitive damages, requiring courts to hold evidentiary hearings before residents could pursue punitive-damage claims.
https://www.miamiherald.com/news/health-care/article242239046.html
Healthcare groups ask Florida governor for legal immunity during COVID-19 pandemic
Healthcare groups ask Florida governor for legal immunity during COVID-19 pandemic
BY CHRISTINE SEXTON NEWS SERVICE OF FLORIDA
APRIL 23, 2020 04:59 PM, UPDATED APRIL 23, 2020 07:12 PM
As Gov. Ron DeSantis looks to open the state back up, he is being pushed by healthcare providers to shield them from lawsuits stemming from the delivery of care during the COVID-19 pandemic.
The state’s largest physician, hospital and nursing-home associations are asking DeSantis to issue executive orders that would protect their members from lawsuits because of actions that occurred — or didn’t occur — during the crisis. Several groups even provided a fully worded proposal to the governor this week.
DeSantis has remained silent on whether he will follow the lead of other governors who have provided immunity to healthcare providers. The governor’s office did not answer questions about the requests.
The Florida Hospital Association and other groups sent a letter Wednesday to DeSantis that voiced worries about potential lawsuits against frontline workers. Among the groups signing onto the letter were the Florida Nurses Association, the Florida Society of Anesthesiologists, the Florida Nurse Practitioners Network, the Florida Chamber of Commerce and Associated Industries of Florida.
“While the battle rages, it is unfortunate, but necessary, that steps be taken to avoid another crisis — a proliferation of inappropriate and unwarranted lawsuits,” the letter said. “In the future, after the current awareness of the incessant harsh realities confronting patients and providers has faded, there may be some who would seek to take advantage of the COVID-19 crisis by suing providers based on applications of standards of care that would fail to account for the special challenges presented by a devastating pandemic.”
QUICK FACTS ON COVID-19 IN FLORIDA
The Florida Medical Association, the Florida Osteopathic Medical Association and the Florida Justice Reform Institute last month were the first organizations to formally request protections from medical-malpractice lawsuits for care provided during the COVID-19 crisis.
“An executive order is important to send a message to physicians that the state of Florida backs them and respects what they are doing [and] agrees that they should not be sued in the future for any liability issues … for the handling of the COVID-19 crisis,” said William Large, president of the Florida Justice Reform Institute, which is backed by business groups and lobbies for lawsuit restrictions.
SEEKING SOVEREIGN IMMUNITY FOR DOCTORS
Signed by Large, Florida Medical Association President Ronald Giffler and Florida Osteopathic Medical Association President Eric Goldsmith, a March 26 letter recommended that DeSantis issue an executive order that would limit liability; provide sovereign immunity protections for doctors who were complying with a DeSantis emergency order that shut down optional healthcare services; or amend sections of the state’s so-called “Good Samaritan Act” so it would apply to physicians working during the pandemic.
Nursing homes, meanwhile, are seeking protections from cases that can be filed against them for violating nursing-home residents’ rights. The Florida Health Care Association sent a letter to DeSantis on April 3 asking for immunity from civil and criminal liability for “any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” during the pandemic.
Spokeswoman Kristen Knapp said the nursing home association has not received a response. DeSantis told reporters last week that, “I think it’s under review. I haven’t made any decisions yet and we’ll look.”
The request remains pending as the number of COVID-19 cases at nursing homes and other long-term care facilities continues to climb. As of Thursday morning, 2,386 COVID-19 cases had been reported involving residents or staff members at 335 long-term care facilities across the state. Those cases had a more than 10% mortality rate.
AHCA SAYS COVID-19 EXCEEDS NORMAL SCENARIOS
Agency for Health Care Administration Secretary Mary Mayhew said the state has made “monumental efforts” to help the long-term care industry respond to the virus. Mayhew said last week that the infection prevention and control needed to combat the virus “frankly exceeded the level of infection prevention typically associated with our nursing homes and assisted living facilities.”
The state last week also suspended the licenses of two nursing-home administrators in Jefferson County because of alleged deficient care.
Any attempt to shield nursing homes and other providers from lawsuits, however, likely will face fierce opposition from groups such as plaintiffs’ attorneys. Jacksonville attorney Steve Watrel said now is not the time to grant broad immunity.
“The court system exists for a reason,” Watrel said. “The court system exists to ferret out meritorious from non-meritorious claims. And broad brushes of immunity are not only not appropriate right now but would lead to an increase of injury and death. Because, unfortunately, the reality of human nature is, without the threat of accountability, responsibility dwindles.”
Knapp said nursing homes have been receiving “conflicting guidance from federal, state and local government entities” and that COVID-19 has required facilities to take actions they ordinarily would not take. For instance, Knapps said homes in Broward County are being told by local health department officials to keep residents in their rooms with doors closed, which would “be a violation of health care standards on a normal day.”
“In the midst of this unprecedented crisis, long term caregivers should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making these types of tough decisions while trying to comply with government directives,” she said in a statement to The News Service of Florida.
ACTIONS IN OTHER STATES
Some other states have provided legal protections for care provided during the pandemic. For example, governors in Arkansas, Arizona, Connecticut, Illinois, Kentucky, Massachusetts, New Hampshire, Nevada, New York, Vermont and Wisconsin have issued orders protecting physicians from lawsuits, according to the American Medical Association.
Knapp said governors in Arkansas, Arizona, Connecticut, Georgia, Hawaii, Illinois, Michigan, New Jersey, New York, Rhode Island and Wisconsin issued executive orders limiting lawsuits against nursing homes. Also, lawmakers in New York, New Jersey and Kentucky passed legislation, she said
But shielding doctors, hospitals and nursing homes from lawsuits has long been a controversial issue in Florida, and it flared up again in recent years.
Interest in medical-malpractice protections was refueled by Florida Supreme Court rulings in 2014 and 2017 that struck down limits on non-economic damages in malpractice lawsuits.
The state House considered a far-reaching malpractice bill in 2019 that would have addressed the court rulings. But the proposal cleared only one panel in the House and never was considered by the Senate.
Jacksonville attorney Chris Nuland, who lobbies for physician groups, said other issues, such as expanded practice authority for pharmacists and advanced practice registered nurses, dominated his time during the 2020 session. Changes to the malpractice system were “out there on the scene, although no one really went after it this year,” he said.
Leading up to the pandemic, the state’s medical-malpractice insurance market was profitable and stable. Florida ranked fourth in the nation in terms of premiums written with roughly $562 million in 2018, according to a Florida Office of Insurance Regulation report.
Sixty-five percent of the premiums, the report shows, came from physicians’ policies. On average, the report noted, medical malpractice rates increased for physicians by 3.5%.
The last time the Legislature delved into nursing home lawsuits was 2014, when it agreed to pass legislation that prevented “passive” investors from being named as defendants in cases related to injuries suffered by nursing-home residents. The bill also made it harder to sue nursing homes for punitive damages, requiring courts to hold evidentiary hearings before residents could pursue punitive-damage claims.
https://www.bradenton.com/news/local/health-care/article242239046.html
Health Care Providers Seek Legal Protections
Health Care Providers Seek Legal Protections
April 23, 2020 Christine Sexton
TALLAHASSEE — As Gov. Ron DeSantis looks to open the state back up, he is being pushed by health-care providers to shield them from lawsuits stemming from the delivery of care during the COVID-19 pandemic.
The state’s largest physician, hospital and nursing-home associations are asking DeSantis to issue executive orders that would protect their members from lawsuits because of actions that occurred — or didn’t occur — during the crisis. Several groups even provided a fully worded proposal to the governor this week.
DeSantis has remained silent on whether he will follow the lead of other governors who have provided immunity to health-care providers. The governor’s office did not answer questions about the requests.
The Florida Hospital Association and other groups sent a letter Wednesday to DeSantis that voiced worries about potential lawsuits against frontline workers. Among the groups signing onto the letter were the Florida Nurses Association, the Florida Society of Anesthesiologists, the Florida Nurse Practitioners Network, the Florida Chamber of Commerce and Associated Industries of Florida.
“While the battle rages, it is unfortunate, but necessary, that steps be taken to avoid another crisis — a proliferation of inappropriate and unwarranted lawsuits,” the letter said. “In the future, after the current awareness of the incessant harsh realities confronting patients and providers has faded, there may be some who would seek to take advantage of the COVID-19 crisis by suing providers based on applications of standards of care that would fail to account for the special challenges presented by a devastating pandemic.”
The Florida Medical Association, the Florida Osteopathic Medical Association and the Florida Justice Reform Institute last month were the first organizations to formally request protections from medical-malpractice lawsuits for care provided during the COVID-19 crisis.
“An executive order is important to send a message to physicians that the state of Florida backs them and respects what they are doing (and) agrees that they should not be sued in the future for any liability issues … for the handling of the COVID-19 crisis,” said William Large, president of the Florida Justice Reform Institute, which is backed by business groups and lobbies for lawsuit restrictions.
Signed by Large, Florida Medical Association President Ronald Giffler and Florida Osteopathic Medical Association President Eric Goldsmith, a March 26 letter recommended that DeSantis issue an executive order that would limit liability; provide sovereign immunity protections for doctors who were complying with a DeSantis emergency order that shut down optional health-care services; or amend sections of the state’s so-called “Good Samaritan Act” so it would apply to physicians working during the pandemic.
Nursing homes, meanwhile, are seeking protections from cases that can be filed against them for violating nursing-home residents’ rights. The Florida Health Care Association sent a letter to DeSantis on April 3 asking for immunity from civil and criminal liability for “any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” during the pandemic.
Spokeswoman Kristen Knapp said the nursing-home association has not received a response. DeSantis told reporters last week that, “I think it’s under review. I haven’t made any decisions yet and we’ll look.”
The request remains pending as the number of COVID-19 cases at nursing homes and other long-term care facilities continues to climb. As of Thursday morning, 2,386 COVID-19 cases had been reported involving residents or staff members at 335 long-term care facilities across the state. Those cases had a more than 10 percent mortality rate.
Agency for Health Care Administration Secretary Mary Mayhew said the state has made “monumental efforts” to help the long-term care industry respond to the virus. Mayhew said last week that the infection prevention and control needed to combat the virus “frankly exceeded the level of infection prevention typically associated with our nursing homes and assisted living facilities.”
The state last week also suspended the licenses of two nursing-home administrators in Jefferson County because of alleged deficient care.
Any attempt to shield nursing homes and other providers from lawsuits, however, likely will face fierce opposition from groups such as plaintiffs’ attorneys. Jacksonville attorney Steve Watrel said now is not the time to grant broad immunity.
“The court system exists for a reason,” Watrel said. “The court system exists to ferret out meritorious from non-meritorious claims. And broad brushes of immunity are not only not appropriate right now but would lead to an increase of injury and death. Because, unfortunately, the reality of human nature is, without the threat of accountability, responsibility dwindles.”
Knapp said nursing homes have been receiving “conflicting guidance from federal, state and local government entities” and that COVID-19 has required facilities to take actions they ordinarily would not take. For instance, Knapps said homes in Broward County are being told by local health department officials to keep residents in their rooms with doors closed, which would “be a violation of health care standards on a normal day.”
“In the midst of this unprecedented crisis, long term caregivers should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making these types of tough decisions while trying to comply with government directives,” she said in a statement to The News Service of Florida.
Some other states have provided legal protections for care provided during the pandemic. For example, governors in Arkansas, Arizona, Connecticut, Illinois, Kentucky, Massachusetts, New Hampshire, Nevada, New York, Vermont and Wisconsin have issued orders protecting physicians from lawsuits, according to the American Medical Association.
Knapp said governors in Arkansas, Arizona, Connecticut, Georgia, Hawaii, Illinois, Michigan, New Jersey, New York, Rhode Island and Wisconsin issued executive orders limiting lawsuits against nursing homes. Also, lawmakers in New York, New Jersey and Kentucky passed legislation, she said
But shielding doctors, hospitals and nursing homes from lawsuits has long been a controversial issue in Florida, with the issue flaring again in recent years.
Interest in medical-malpractice protections was refueled by Florida Supreme Court rulings in 2014 and 2017 that struck down limits on non-economic damages in malpractice lawsuits.
The state House considered a far-reaching malpractice bill in 2019 that would have addressed the court rulings. But the proposal cleared only one panel in the House and never was considered by the Senate.
Jacksonville attorney Chris Nuland, who lobbies for physician groups, said other issues, such as expanded practice authority for pharmacists and advanced practice registered nurses, dominated his time during the 2020 session. Changes to the malpractice system were “out there on the scene, although no one really went after it this year,” he said.
Leading up to the pandemic, the state’s medical-malpractice insurance market was profitable and stable. Florida ranked fourth in the nation in terms of premiums written with roughly $562 million in 2018, according to a Florida Office of Insurance Regulation report.
Sixty-five percent of the premiums, the report shows, came from physicians’ policies. On average, the report noted, medical malpractice rates increased for physicians by 3.5 percent.
The last time the Legislature delved into nursing home lawsuits was 2014, when it agreed to pass legislation that prevented “passive” investors from being named as defendants in cases related to injuries suffered by nursing-home residents. The bill also made it harder to sue nursing homes for punitive damages, requiring courts to hold evidentiary hearings before residents could pursue punitive-damage claims.
Business, Medical Groups Ask Ron DeSantis for Executive Order Protecting Healthcare Providers from Frivolous Lawsuits
Business, Medical Groups Ask Ron DeSantis for Executive Order Protecting Healthcare Providers from Frivolous Lawsuits
By FLORIDA DAILY -04.22.20
A host of business and medical groups wrote Gov. Ron DeSantis on Tuesday looking to protect healthcare providers from frivolous lawsuits during the coronavirus pandemic.
The groups asked DeSantis to issue an executive order on the matter and provided him with a model he could use.
The groups signing the letter included the Florida Hospital Association, the Associated Industries of Florida, Community Health Systems, the Florida Association of Nurse Anesthetists, the Florida Bioethics Network, the Florida Chamber of Commerce, the Florida College of Emergency Physicians, the Florida Emergency Nurses Association, the Florida Justice Reform Institute, the Florida Nurses Association, the Florida Nurse Practitioners Network, the Florida Senior Living Association, the Florida Society for Healthcare Risk Management and Patient Safety, the Florida Society for Respiratory Care and the Florida Society of Anesthesiologists
The letter is as follows:
Florida’s hospitals and our partner health care providers have been on the front lines in the battle against the COVID-19 pandemic. Engaging in that battle has required brave dedication of individuals who must tirelessly and creatively provide care in an environment in which the availability of resources is uncertain and the potential for becoming infected with a deadly virus is significant. We are proud of the efforts by those health care providers and are thankful for the appreciation you have shown to them.
While the battle rages, it is unfortunate, but necessary, that steps be taken to avoid another crisis – a proliferation of inappropriate and unwarranted lawsuits. In the future, after the current awareness of the incessant harsh realities confronting patients and providers has faded, there may be some who would seek to take advantage of the COVID-19 crisis by suing providers based on applications of standards of care that would fail to account for the special challenges presented by a devastating pandemic.
The need for limited liability protections for health care providers has been recognized and addressed by the Federal government through the Public Readiness and Emergency Preparedness Act (“PREP” Act) and by states through their Governors’ executive orders. Among those executive orders were orders entered by the Governors of Georgia, Michigan, New York and Connecticut.
We are respectively requesting that you enter an executive order to provide temporary, limited immunity to Florida’s health care providers as they respond to the COVID-19 crisis. Enclosed is a draft of a proposed executive order for your consideration. Important features of the proposed executive are:
1. The proposed immunity is limited in time, as it will expire on October 1, 2020, unless further extended. The time limitation ensures that the effect of the executive order does not extend beyond the time period necessary to address the COVID-19 crisis.
2. The proposed immunity is limited in scope, as it does not apply to willful misconduct by a health care provider.
3. Health care providers who provide care and treatment consistent with standards of care, specifically developed for use in a crisis (discussed further, below), are provided temporary and limited immunity from civil liability and criminal prosecution.
4. Protection is provided to health care providers who in good faith endeavor to make decisions that will comply your Executive Order 20-72.
already afforded to “Good Samaritans” is extended to health care providers who would not otherwise have that immunity because they are compensated for their services or they otherwise do not meet requirements of Section 768.13, Florida Statutes, which are ordinarily appropriate but are not appropriate during a crisis.
The crisis standards of care referenced in the proposed executive order were developed by the Florida Bioethics Network (“FBN”). FBN, an affiliate of the University of Miami, was established in 1991 and works with health care providers to address complex legal and ethical issues. FBN developed the crisis standards of care in consultation with critical care physicians and ethics experts from around the United States. In developing the crisis standards of care, FBN also consulted analyses by a technical advisory committee convened by the Florida Department of Health to review actions in response to the 2009 H1N1 influenza emergency. The resulting crisis standards of care provide appropriate and necessary guidance to health care providers called upon to make the most challenging decisions required to respond to the COVID-19 crisis.
We greatly appreciate the efforts you, the Agency for Health Care Administration, the Department of Health and other state and local government agencies have undertaken to protect Florida’s citizens from the horrible effects of COVID-19. We stand ready to work with you to take steps necessary to protect Florida’s health care providers and citizens from a liability crisis.
On behalf of our coalition, thank you for your consideration.
The coalition offered the following proposed Executive Order:
WHEREAS, Novel Coronavirus Disease 2019 (COVID-19) is a severe acute respiratory illness that can spread among humans through respiratory transmission and presents with symptoms of cough, fever, and shortness of breath; and
WHEREAS, on March 1, 2020, I issued Executive Order number 20-51 directing the Florida Department of Health to issue a Public Health Emergency; and
WHEREAS, on March 1, 2020, the State Surgeon General and State Health Officer declared a Public Health Emergency exists in the State of Florida as a result of COVID-19; and
WHEREAS, on March 9, 2020, I issued Executive Order 20-52 declaring a state of emergency for the entire State of Florida as a result of COVID-19; and
WHEREAS, due to the outbreak of COVID-19, the State Surgeon General and the Secretary for the Agency of Health Care Administration recognize that due to the current conditions caused by COVID-19 in this state, that medical decisions may be necessary by health care providers to initiate measures to conserve medical supplies, including personal protective equipment and to make decisions regarding the utilization of life-saving medical equipment including but not limited to ventilators for individuals that need mechanical assistance for adequate oxygenation be used in response to this emergency or for any other medical event of urgent or emergent nature; and
WHEREAS, due to the outbreak of COVID-19, it is necessary for health care providers and others responding to this emergency, to be able to make decisions regarding the utilization of life supporting and live saving medical equipment, the modification of said equipment to serve the greatest number of individuals and all other decisions regarding the provision of care to individuals with COVID-19 without fear of criminal or civil liability:
NOW, THEREFORE, I, RON DESANTIS, as Governor of Florida, by virtue of the authority vested in me by Article IV, Section (l)(a) of the Florida Constitution, Chapter 252, Florida Statutes, and all other applicable laws, promulgate the following Executive Order to take immediate effect:
Section 1. Because of the foregoing conditions, it is necessary to grant immunity to health care providers under certain sections of the State’s criminal code and for immunity from civil liability for acts taken and medical decisions made when providing care and treating to individuals with a confirmed or presumptive diagnosis of COVID-19 or treating individuals with other conditions that may be affected by the provision of care to individuals with a confirmed or presumptive diagnosis of COVID-19.
Section 2. For purposes of this Executive Order, the term “health care provider” is defined as hospital, ambulatory surgical center, or mobile surgical facility as defined and licensed under chapter 395; a birth center licensed under chapter 383; a facility licensed under Parts II, III or IV of chapter 400; a facility licensed under chapter 429; any person licensed under chapter 458, chapter 459, chapter 462, part I of chapter 464, chapter 467, parts III, IV, V, of chapter 468, or chapter 486; a clinical lab licensed under chapter 483; a health maintenance organization certificated under part I of chapter 641; a blood bank; a plasma center; an industrial clinic; a renal dialysis facility; or a professional association partnership, corporation, joint venture, or other association for professional activity by health care providers; or a Federally Qualified Health Center.
Section 3. IMMUNITY FROM CIVIL LIABILITY: No health care provider shall be liable for any civil damages caused by, arising out of, relating to, or resulting from:
1. the care and treatment or the delay or withholding of care and treatment of individuals with a confirmed or presumptive diagnosis of COVID-19 in support of the State of Florida’s response to the COVID-19 pandemic; or
2. the care and treatment or the delay or withholding of care or treatment of any individual based on the good faith determination that the care and treatment or delay or withholding of care or treatment is consistent with the protocols set forth in Appendix A to this Executive Order; or
3. the care and treatment or delay or withholding of care or treatment of any individual based upon the good faith determination of the health care provider that such delay or withholding of care and treatment was in compliance with Executive Order 20-72 issued March 20, 2020.
Section 768.13 is modified to the extent necessary to provide immunity to health care providers as set forth in this Section 3.
Section 4. CRIMINAL PROSECUTION: No health care provider shall be prosecuted or held criminally liable for the care and treatment or the delay or withholding of care or treatment of any individual based on the good faith determination by the health care provider that the care and treatment or delay or withholding of care or treatment is consistent with the protocols set forth in Appendix A to this Executive Order.
Section 5. The civil and criminal immunity conferred by this Executive Order does not extend to acts of willful misconduct by the health care provider.
Section 6. The civil and criminal immunity conferred by this Executive Order is in addition to any other immunity or limitations of liability provided by law.
Section 7. This Executive Order shall remain in effect until the expiration of Executive Order 20-52, including all extensions thereof, and the immunity granted herein shall apply to all claims arising out of care and treatment described in Sections 3 or 4 during the effective period of this Executive Order.
Advocates are hopeful Gov. DeSantis will expand liability protection to medical providers
FLORIDA RECORD
Advocates are hopeful Gov. DeSantis will expand liability protection to medical providers
By Juliette Fairley | Apr 10, 2020
William Large
MIAMI – COVID-19 advocates are hopeful that Gov. Ron DeSantis will expand liability protections for health care professionals on the front lines of the COVID-19 outbreak after receiving a letter signed by a coalition of healthcare providers and facilities outlining the dangers.
“Most hospital intensive care units have specialists and pulmonologists responding to COVID-19 infections but there are so many cases that we need other specialists responding in the ICU,” said William Large, president of the Florida Justice Reform Institute (FJRI). “These providers deserve to be protected from any potential lawsuits.”
The coalition, which includes the presidents of the Florida Medical Association (FMA) and the Florida Osteopathic Medical Association as well as FJRI, has not yet received an official response to their letter from the governor’s office.
According to Florida’s Department of Health, there have been a total of 16,826 reported COVID-19 cases and 371 deaths statewide.
“We have been asking for new innovative techniques, which we hope will have positive outcomes but if there are any negative outcomes and they lead to lawsuits, healthcare providers need protections,” Large told the Florida Record.
However, trial attorney Daniel Uhlfelder said healthcare providers, such as physicians, have an obligation to their oath.
“I hope they continue to recognize it,” Uhlfelder said. “Most practicing healthcare providers already carry some kind of malpractice insurance. They need to do what they can to save lives because making changes to their situation in the middle of a pandemic is hard to do.”
The governor’s office did not immediately respond to requests for comment from the Florida Record.
“This virus is unprecedented,” Uhlfelder said. “The last thing we need is for doctors, nurses and other healthcare providers to stop working out of fear that they will be sued.”
As previously reported, the letter recommends that the sovereign immunity that public officials, such as Gov. DeSantis and President Trump, enjoy could be extended to health care workers by deeming them agents of the Department of Health. But such immunity would require an executive order from Gov. DeSantis.
“We hope he will address it this week,” Large said. “It’s critical it happens in short order and that it has a longer-term impact because the statute of limitations for professional malpractice is two years if an incident happened at this time.”