768.38, Florida Statutes

    1  
    2         An act relating to civil liability for damages
    3         relating to COVID-19; creating s. 768.38, F.S.;
    4         providing legislative findings and intent; defining
    5         terms; specifying requirements for civil actions based
    6         on COVID-19-related claims; requiring the court to
    7         make certain determinations in such actions; providing
    8         that plaintiffs have the burden of proof in such
    9         actions; requiring plaintiffs to commence COVID-19
   10         related claims within specified timeframes; creating
   11         s. 768.381, F.S.; defining terms; providing
   12         preliminary procedures for civil actions based on
   13         COVID-19-related claims; providing the standard of
   14         proof required at trial for such claims; providing
   15         affirmative defenses; requiring COVID-19-related
   16         claims to commence within specified timeframes;
   17         providing applicability; providing construction;
   18         providing severability; providing applicability and
   19         for retroactive application; providing an effective
   20         date.
   21  
   22         WHEREAS, an outbreak of the disease known as COVID-19,
   23  which is caused by a novel coronavirus that was not previously
   24  found in humans, occurred in Hubei province, China, in late
   25  2019, and has currently been detected in more than 89 countries,
   26  including the United States, and
   27         WHEREAS, COVID-19 is a severe respiratory disease that can
   28  result in illness or death and is caused by the person-to-person
   29  spread of the novel coronavirus, and
   30         WHEREAS, COVID-19, as a viral agent capable of causing
   31  extensive loss of life or serious disability, is deadly, and
   32         WHEREAS, the transmission of COVID-19 is a threat to human
   33  health in this state, and
   34         WHEREAS, the Secretary of the United States Department of
   35  Health and Human Services declared on January 31, 2020, that a
   36  public health emergency exists in the United States due to
   37  confirmed cases of COVID-19 in this country, and
   38         WHEREAS, on March 1, 2020, the State of Florida Department
   39  of Health, in coordination with Governor Ron DeSantis, first
   40  declared a public health emergency based on the spread of COVID
   41  19, and
   42         WHEREAS, throughout the declared state of emergency, the
   43  Governor’s executive orders included industry-specific
   44  restrictions to prevent the spread of COVID-19 based on the best
   45  information available at the time, allowing and encouraging
   46  certain businesses to continue to safely operate, and
   47         WHEREAS, a strong and vibrant economy is essential to
   48  ensure that Floridians may continue in their meaningful work and
   49  ultimately return to the quality of life they enjoyed before the
   50  COVID-19 outbreak, and
   51         WHEREAS, Floridians must be allowed to earn a living and
   52  support their families without unreasonable government
   53  intrusion, and
   54         WHEREAS, the United States Centers for Disease Control and
   55  Prevention has issued health guidance to all state and local
   56  governments and all citizens, and
   57         WHEREAS, in March 2020, the Centers for Medicare and
   58  Medicaid Services recommended the deferral of nonessential
   59  surgeries and other procedures, and
   60         WHEREAS, the guidance from the Centers for Medicare and
   61  Medicaid Services to defer medical procedures was based in part
   62  on its recognition that the conservation of critical health care
   63  resources is essential, and
   64         WHEREAS, on March 20, 2020, the Governor issued Executive
   65  Order 20-72, which prohibited health care providers “from
   66  providing any medically unnecessary, non-urgent or non-emergency
   67  procedure or surgery which, if delayed, does not place a
   68  patient’s immediate health, safety, or well-being at risk, or
   69  will, if delayed, not contribute to the worsening of a serious
   70  or life-threatening medical condition,” and
   71         WHEREAS, on April 29, 2020, the Governor issued Executive
   72  Order 20-112, which allowed health care providers to perform
   73  procedures prohibited by the earlier order if the health care
   74  provider had adequate supplies of personal protective equipment
   75  and satisfied other conditions, and
   76         WHEREAS, medical experts have been racing to develop
   77  vaccines and to learn how COVID-19 is transmitted and how best
   78  to treat those infected with the disease, and
   79         WHEREAS, the Federal Government, along with state and local
   80  governments, has sought to slow the spread of COVID-19 through
   81  travel bans and restrictions, quarantines, lockdowns, social
   82  distancing, and the closure of businesses or limitations on
   83  business activities, including limitations on the provision of
   84  medical services, and
   85         WHEREAS, health care providers, including hospitals,
   86  doctors, nurses, and other health care facilities and workers,
   87  have struggled to acquire personal protective equipment and
   88  other supplies to protect against the risk of COVID-19
   89  transmission and medications used in the treatment of the
   90  disease, and
   91         WHEREAS, the circumstances of the COVID-19 pandemic have
   92  made it difficult or impossible for health care providers to
   93  maintain ideal levels of staffing, and
   94         WHEREAS, health care providers are essential to the
   95  residents of this state’s survival of the pandemic, and health
   96  care providers have continued to treat patients despite the
   97  potential, and still not fully known, risks of exposure to
   98  COVID-19, and
   99         WHEREAS, while many actions may seem reasonable during the
  100  pandemic, some may attempt to construe these actions differently
  101  in hindsight when calm is restored, and
  102         WHEREAS, as the pandemic continues and recovery begins,
  103  health care providers must be able to remain focused on serving
  104  the health care needs of their respective communities and not on
  105  the potential for unfounded lawsuits, and
  106         WHEREAS, the Legislature finds that it is an overpowering
  107  public necessity to enact legislation that will deter unfounded
  108  lawsuits against individuals, businesses, health care providers,
  109  and other entities based on COVID-19-related claims, while
  110  allowing meritorious claims to proceed, and
  111         WHEREAS, the Legislature finds that the unprecedented and
  112  rare nature of the COVID-19 pandemic, together with the
  113  indefinite legal environment that has followed, requires the
  114  Legislature to act swiftly and decisively, NOW, THEREFORE,
  115  
  116  Be It Enacted by the Legislature of the State of Florida:
  117  
  118         Section 1. Section 768.38, Florida Statutes, is created to
  119  read:
  120         768.38 Liability protections for COVID-19-related claims.—
  121         (1) The Legislature finds that the COVID-19 outbreak in
  122  this state threatens the continued viability of certain business
  123  entities, educational institutions, governmental entities, and
  124  religious institutions that contribute to the overall well-being
  125  of this state. The threat of unknown and potentially unbounded
  126  liability to such businesses, entities, and institutions, in the
  127  wake of a pandemic that has already left many of these
  128  businesses, entities, and institutions vulnerable, has created
  129  an overpowering public necessity to provide an immediate and
  130  remedial legislative solution. Therefore, the Legislature
  131  intends for certain business entities, educational institutions,
  132  governmental entities, and religious institutions to enjoy
  133  heightened legal protections against liability as a result of
  134  the COVID-19 pandemic. The Legislature also finds that there are
  135  no alternative means to meet this public necessity, especially
  136  in light of the sudden, unprecedented nature of the COVID-19
  137  pandemic. The Legislature finds the public interest as a whole
  138  is best served by providing relief to these businesses,
  139  entities, and institutions so that they may remain viable and
  140  continue to contribute to this state.
  141         (2) As used in this section, the term:
  142         (a) “Business entity” has the same meaning as provided in
  143  s. 606.03. The term also includes a charitable organization as
  144  defined in s. 496.404 and a corporation not for profit as
  145  defined in s. 617.01401.
  146         (b) “COVID-19-related claim” means a civil liability claim
  147  against a person, including a natural person, a business entity,
  148  an educational institution, a governmental entity, or a
  149  religious institution, which arises from or is related to COVID
  150  19, otherwise known as the novel coronavirus. The term includes
  151  any such claim for damages, injury, or death. Any such claim, no
  152  matter how denominated, is a COVID-19-related claim for purposes
  153  of this section. The term includes a claim against a health care
  154  provider only if the claim is excluded from the definition of
  155  COVID-19-related claim under s. 768.381, regardless of whether
  156  the health care provider also meets one or more of the
  157  definitions in this subsection.
  158         (c) “Educational institution” means a school, including a
  159  preschool, elementary school, middle school, junior high school,
  160  secondary school, career center, or postsecondary school,
  161  whether public or nonpublic.
  162         (d) “Governmental entity” means the state or any political
  163  subdivision thereof, including the executive, legislative, and
  164  judicial branches of government; the independent establishments
  165  of the state, counties, municipalities, districts, authorities,
  166  boards, or commissions; or any agencies that are subject to
  167  chapter 286.
  168         (e) “Health care provider” means:
  169         1. A provider as defined in s. 408.803.
  170         2. A clinical laboratory providing services in this state
  171  or services to health care providers in this state, if the
  172  clinical laboratory is certified by the Centers for Medicare and
  173  Medicaid Services under the federal Clinical Laboratory
  174  Improvement Amendments and the federal rules adopted thereunder.
  175         3. A federally qualified health center as defined in 42
  176  U.S.C. s. 1396d(l)(2)(B), as that definition exists on the
  177  effective date of this act.
  178         4. Any site providing health care services which was
  179  established for the purpose of responding to the COVID-19
  180  pandemic pursuant to any federal or state order, declaration, or
  181  waiver.
  182         5. A health care practitioner as defined in s. 456.001.
  183         6. A health care professional licensed under part IV of
  184  chapter 468.
  185         7. A home health aide as defined in s. 400.462(15).
  186         8. A provider licensed under chapter 394 or chapter 397 and
  187  its clinical and nonclinical staff providing inpatient or
  188  outpatient services.
  189         9. A continuing care facility licensed under chapter 651.
  190         10. A pharmacy permitted under chapter 465.
  191         (f) “Religious institution” has the same meaning as
  192  provided in s. 496.404.
  193         (3) In a civil action based on a COVID-19-related claim:
  194         (a) The complaint must be pled with particularity.
  195         (b) At the same time the complaint is filed, the plaintiff
  196  must submit an affidavit signed by a physician actively licensed
  197  in this state which attests to the physician’s belief, within a
  198  reasonable degree of medical certainty, that the plaintiff’s
  199  COVID-19-related damages, injury, or death occurred as a result
  200  of the defendant’s acts or omissions.
  201         (c) The court must determine, as a matter of law, whether:
  202         1. The plaintiff complied with paragraphs (a) and (b). If
  203  the plaintiff did not comply with paragraphs (a) and (b), the
  204  court must dismiss the action without prejudice.
  205         2. The defendant made a good faith effort to substantially
  206  comply with authoritative or controlling government-issued
  207  health standards or guidance at the time the cause of action
  208  accrued.
  209         a. During this stage of the proceeding, admissible evidence
  210  is limited to evidence tending to demonstrate whether the
  211  defendant made such a good faith effort.
  212         b. If the court determines that the defendant made such a
  213  good faith effort, the defendant is immune from civil liability.
  214  If more than one source or set of standards or guidance was
  215  authoritative or controlling at the time the cause of action
  216  accrued, the defendant’s good faith effort to substantially
  217  comply with any one of those sources or sets of standards or
  218  guidance confers such immunity from civil liability.
  219         c. If the court determines that the defendant did not make
  220  such a good faith effort, the plaintiff may proceed with the
  221  action. However, absent at least gross negligence proven by
  222  clear and convincing evidence, the defendant is not liable for
  223  any act or omission relating to a COVID-19-related claim.
  224         (d) The burden of proof is upon the plaintiff to
  225  demonstrate that the defendant did not make a good faith effort
  226  under subparagraph (c)2.
  227         (4) A plaintiff must commence a civil action for a COVID
  228  19-related claim within 1 year after the cause of action accrues
  229  or within 1 year after the effective date of this act if the
  230  cause of action accrued before the effective date of this act.
  231         Section 2. Section 768.381, Florida Statutes, is created to
  232  read:
  233         768.381 COVID-19-related claims against health care
  234  providers.—
  235         (1) DEFINITIONS.—As used in this section, the term:
  236         (a) “Authoritative guidance” means nonbinding instructions
  237  or recommendations from a federal, state, or local governmental
  238  entity, a clinical professional organization, or another
  239  authoritative source of clinical guidance.
  240         (b) “COVID-19” means the novel coronavirus identified as
  241  SARS-CoV-2; any disease caused by SARS-CoV-2, its viral
  242  fragments, or a virus mutating therefrom; and all conditions
  243  associated with the disease which are caused by SARS-CoV-2, its
  244  viral fragments, or a virus mutating therefrom.
  245         (c) “COVID-19 emergency” means a public health emergency
  246  relating to COVID-19 which is declared by an emergency
  247  declaration of the Federal Government or an emergency order of
  248  the State Surgeon General or a state of emergency due to COVID
  249  19 declared by executive order of the Governor.
  250         (d) “COVID-19-related claim” means a civil liability claim
  251  against a health care provider which arises from the:
  252         1. Diagnosis or treatment of, or failure to diagnose or
  253  treat, a person for COVID-19;
  254         2. Provision of a novel or experimental COVID-19 treatment;
  255         3. Transmission of COVID-19;
  256         4. Delay or cancellation of a surgery or a delay or
  257  cancellation of a medical procedure, a test, or an appointment
  258  based on a health care provider’s interpretation or application
  259  of government-issued health standards or authoritative guidance
  260  specifically relating to the COVID-19 emergency;
  261         5. An act or omission with respect to an emergency medical
  262  condition as defined in s. 395.002, and which act or omission
  263  was the result of a lack of resources directly caused by the
  264  COVID-19 pandemic; or
  265         6. The provision of treatment to a patient diagnosed with
  266  COVID-19 whose injuries were directly related to an exacerbation
  267  of the patient’s preexisting conditions by COVID-19.
  268  
  269  The term does not include a claim alleging that an act or
  270  omission by a health care provider caused a person to contract
  271  COVID-19 or a derivative claim to such claim unless the person
  272  was a resident or patient of the health care provider or a
  273  person seeking care or treatment from the health care provider.
  274         (e) “Government-issued health standards” means federal,
  275  state, or local laws, rules, regulations, or orders that
  276  describe the manner in which a health care provider must
  277  operate.
  278         (f) “Health care provider” means any of the following:
  279         1. A provider as defined in s. 408.803.
  280         2. A clinical laboratory providing services in this state
  281  or services to health care providers in this state, if the
  282  clinical laboratory is certified by the Centers for Medicare and
  283  Medicaid Services under the federal Clinical Laboratory
  284  Improvement Amendments and the federal rules adopted thereunder.
  285         3. A federally qualified health center as defined in 42
  286  U.S.C. s. 1396d(l)(2)(B), as that definition existed on the
  287  effective date of this act.
  288         4. Any site providing health care services which was
  289  established for the purpose of responding to the COVID-19
  290  pandemic pursuant to any federal or state order, declaration, or
  291  waiver.
  292         5. A health care practitioner as defined in s. 456.001.
  293         6. A health care professional licensed under part IV of
  294  chapter 468.
  295         7. A home health aide as defined in s. 400.462(15).
  296         8. A provider licensed under chapter 394 or chapter 397 and
  297  its clinical and nonclinical staff providing inpatient or
  298  outpatient services.
  299         9. A continuing care facility licensed under chapter 651.
  300         10. A pharmacy permitted under chapter 465.
  301         (2) PRELIMINARY PROCEDURES.—
  302         (a) In any civil action against a health care provider
  303  based on a COVID-19-related claim, the complaint must be pled
  304  with particularity by alleging facts in sufficient detail to
  305  support each element of the claim. An affidavit of a physician
  306  is not required as part of the pleading.
  307         (b) If the complaint is not pled with particularity, the
  308  court must dismiss the action.
  309         (3) STANDARD OF PROOF.—A plaintiff who brings an action for
  310  a COVID-19-related claim against a health care provider must
  311  prove by the greater weight of the evidence that the health care
  312  provider was grossly negligent or engaged in intentional
  313  misconduct.
  314         (4) AFFIRMATIVE DEFENSES.—If a health care provider proves
  315  by the greater weight of the evidence the existence of an
  316  affirmative defense that applies to a specific COVID-19-related
  317  claim, the health care provider has no liability for that claim.
  318  The affirmative defenses that may apply to a COVID-19-related
  319  claim against a health care provider include, in addition to any
  320  other affirmative defenses recognized by law, the health care
  321  provider’s:
  322         (a) Substantial compliance with government-issued health
  323  standards specifically relating to COVID-19 or other relevant
  324  standards, including standards relating to the preservation or
  325  prioritization of supplies, materials, or equipment;
  326         (b) Substantial compliance with government-issued health
  327  standards specific to infectious diseases in the absence of
  328  standards specifically applicable to COVID-19;
  329         (c) Substantial compliance with government-issued health
  330  standards relating to COVID-19 or other relevant standards was
  331  not possible due to the widespread shortages of necessary
  332  supplies, materials, equipment, or personnel;
  333         (d) Substantial compliance with any applicable government
  334  issued health standards relating to COVID-19 or other relevant
  335  standards if the applicable standards were in conflict; or
  336         (e) Substantial compliance with government-issued health
  337  standards relating to COVID-19 or other relevant standards was
  338  not possible because there was insufficient time to implement
  339  the standards.
  340         (5) LIMITATIONS PERIOD.—
  341         (a) An action for a COVID-19-related claim against a health
  342  care provider which arises out of the transmission, diagnosis,
  343  or treatment of COVID-19 must commence within 1 year after the
  344  later of the date of death due to COVID-19, hospitalization
  345  related to COVID-19, or the first diagnosis of COVID-19 which
  346  forms the basis of the action.
  347         (b) An action for a COVID-19-related claim against a health
  348  care provider which does not arise out of the transmission,
  349  diagnosis, or treatment of COVID-19, such as a claim arising out
  350  of a delayed or canceled procedure, must commence within 1 year
  351  after the cause of action accrues.
  352         (c) Notwithstanding paragraph (a) or paragraph (b), an
  353  action for a COVID-19-related claim that accrued before the
  354  effective date of this act must commence within 1 year after the
  355  effective date of this act.
  356         (6) APPLICATION PERIOD.—This section applies to claims that
  357  have accrued before the effective date of this act and within 1
  358  year after the effective date of this act.
  359         (7) INTERACTION WITH OTHER LAWS.—
  360         (a) This section does not create a new cause of action but
  361  instead applies in addition to any other applicable provisions
  362  of law, including, but not limited to, chapters 400, 429, 766,
  363  and 768. This section controls over any conflicting provision of
  364  law, but only to the extent of the conflict.
  365         (b) This section does not apply to claims governed by
  366  chapter 440.
  367         Section 3. If any provision of this act or its application
  368  to any person or circumstance is held invalid, the invalidity
  369  does not affect other provisions or applications of the act
  370  which can be given effect without the invalid provision or
  371  application, and to this end the provisions of this act are
  372  severable.
  373         Section 4. This act applies retroactively and
  374  prospectively. However, this act does not apply in a civil
  375  action against a particular named defendant which is commenced
  376  before the effective date of this act.
  377         Section 5. This act shall take effect upon becoming a law.

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