Florida has enacted new COVID-19 liability protections for businesses. On March 29, 2021, Governor Ron DeSantis signed the bill into law. The law was passed to reduce the threat of unknown liability "in the wake of a pandemic that has already left many of these businesses, entities and institutions vulnerable."
The law requires plaintiffs in COVID-19 related civil actions to plead their complaint with particularity and submit an affidavit (at the same time the complaint is filed) signed by a physician that attests the plaintiff's COVID-19 related damages, injury, or death occurred as a result of the defendant's acts or omissions. If the plaintiff cannot meet these conditions, the lawsuit must be dismissed without prejudice. If the court decides the lawsuit can proceed, then the plaintiff must show that the defendant failed to make a good faith effort to substantially comply with authoritative or controlling government issued health standards or guidance at the time the claim accrued. Even if so, the plaintiff must prove the defendant's acts or omissions constituted gross negligence by clear and convincing evidence.
The law also creates separate protections for health care providers. Likewise, the plaintiff in a COVID-19 related action against a health care provider must allege the claim with particularity. However, a physician's affidavit is not required. Under the portion of the new law addressing healthcare providers, a COVID-19 related claim means the following:
· Diagnosis or treatment, or failure to diagnose or treat, an individual for COVID-19;
· Provision of any “novel” or “experimental” COVID-19-related treatment;
· Transmission of COVID-19 to an individual;
· Where a healthcare provider delays or cancels a surgery, medical procedure, test, or appointment based on the provider’s interpretation or application of government health standards or guidance related to COVID-19;
· An act or omission regarding an emergency medical condition which was the result of a lack of resources directly caused by the pandemic; and
· Provision of treatment to a patient diagnosed with COVID-19 whose injuries were directly related to an exacerbation of the individual’s preexisting conditions by COVID-19.
To prevail, the burden is on the plaintiff to prove the health care provider was grossly negligent or engaged in intentional misconduct by the greater weight of the evidence. The law also affords specific affirmative defenses for providers who either substantially complied with government-issued health standards related to COVID-19 or infectious diseases or where substantial compliance with the standards was not possible due to widespread shortages of necessary supplies, equipment, or personnel, and there was not enough time to implement such standards.
Overall, this law provides substantial protections for business owners and places major hurdles on plaintiffs when filing suit for COVID-19 related damages. To help avoid liability, businesses should monitor and comply with all federal, state, and local COVID-19 related guidance and rules, particularly including those published by the Centers for Disease Control and Prevention (CDC) and the federal Occupational Safety and Health Administration (OSHA). Such efforts should be documented, including implementation of written policies and procedures that track CDC and OSHA guidance.