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House, Senate Show Differences On COVID-19 Liability Bills

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The Florida Channel
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Senate Judiciary Chairman Jeff Brandes says he plans to expand the Senate's version of the business liability bill to include protections for health care providers. Meantime, the House has moved forward with separate proposals for businesses and health care providers.

A House panel on Tuesday voted 12-6 to approve legislation that would protect nursing homes, assisted living facilities, hospitals and physicians from lawsuits related to COVID-19.

The push to fast-track legislation to protect Florida businesses from COVID-19 litigation continues to be bumpy.

While Tuesday was just the first day of the 2021 legislative session, Republicans in the House and Senate showed signs they continue to go in different directions on the sweeping proposals.

In January, GOP lawmakers released identical proposals to protect non-health care businesses from lawsuits related to COVID-19 deaths or injuries.

But Senate Judiciary Chairman Jeff Brandes on Tuesday told The News Service of Florida that he plans to expand the Senate's version of the COVID-19 business liability bill (SB 72) to include protections for health care providers, such as nursing homes and assisted living facilities. Those protections have been contained in another bill (SB 74) --- and the House has moved forward with separate proposals for general businesses and health care providers.

“I think the key is that we are focused on one singular issue,” Brandes, R-St. Petersburg, said, adding that he plans on rolling his proposals into one bill when the Senate Rules Committee considers the issue.

But that could prove controversial.

Among other things, the health care bill provides broad immunity protections, including providing immunity to nursing homes, assisted living facilities, hospitals and physicians if “supplies, materials, equipment, or personnel necessary to comply with the applicable government-issued health standards or guidance at issue were not readily available or were not available at a reasonable cost.”

The House’s proposed health care liability protections (HB 7005) do not include a similar provision. The House Pandemics & Public Emergencies Committee voted 12-6 to approve that bill Tuesday evening.

Meanwhile, the full House is scheduled Thursday to take up its version of the bill (HB 7) that would provide liability protections to non-health care businesses. It likely will be one of the first two bills to get approval from the House during this year’s session.

Brandes made his remarks after the Senate Commerce and Tourism Committee voted 7-4 along party lines to approve the Senate bill focused on non-health care businesses. Members of the committee debated --- and shot down ---a spate of amendments offered by Democrats, including several proposed by Sen. Jason Pizzo, D-North Miami Beach.

For example, one Pizzo amendment would have deleted part of the bill that would allow judges to decide whether defendants made good-faith efforts to “substantially comply” with health standards or guidance issued by authorities. If judges determine that good-faith efforts were made, lawsuits would be precluded from going forward. An attorney, Pizzo argued that the provision would make judges the arbiter of facts and not the arbiter of law.

Pizzo also proposed an amendment that would have deleted a requirement that plaintiffs prove by “clear and convincing evidence” that defendants were “at least grossly negligent.” The Pizzo amendment would have maintained a current standard for personal injury lawsuits, which is proof by a greater weight of the evidence.

The committee also rejected an amendment by Sen. Annette Taddeo, D-Miami, that would have mandated businesses that want to tap into the liability protections to post signs at entrances advising customers that the businesses are “not liable for transmission or exposure of COVID-19.”

“I think the consumer needs to know that they are walking into a location that is fulfilling all the parts of this bill to protect themselves from liability,” Taddeo said in support of her amendment. “And that’s all I am asking for: a sign at their door.”

While the Senate panel rejected all of the proposed amendments, the Senate bill is different from the House version for non-health care businesses. That’s because the House Judiciary Committee last month changed the House bill to make clear that if different guidelines and standards were in effect at the time plaintiffs were allegedly infected with COVID-19, businesses would only have needed to comply with one of the standards to get liability protections.

“Adding this to the Senate bill would perhaps add some clarity to this issue as the bill moves forward,” said Florida Restaurant & Lodging Association General Counsel Samantha Padgett.

While Republican leaders have made liability protections a top priority, critics noted that the state has not seen a flood of COVID-19-related lawsuits against businesses.

But proponents of the legislation argue that the numbers of lawsuits filed is misleading. William Large, president of the Florida Justice Reform Institute, testified that he is aware of 53 potential lawsuits based on the number of presuit notices businesses have received.

National Federation of Independent Business lobbyist Tim Nungesser said the Senate bill would provide much-needed protections to businesses during the pandemic.

“I would submit to you this bill in front of you is a COVID-19 vaccine for small businesses,” Nungesser said. “We know that vaccines are meant to be given to folks to protect them so they don’t get sick. This bill in front of you protects small business owners so they don’t get sued in a frivolous way.”

But some critics argue that business groups have unsuccessfully pushed for lawsuit limitations for years and that the pandemic has made it convenient for lawmakers to grant them their wish.

Florida AFL-CIO lobbyist Rich Templin said local unions have been working with businesses since the beginning of the pandemic for worker protections. Sometimes the unions have been successful in getting businesses to agree to mask requirements and other safety steps, but sometimes they aren’t successful.

“We now have a bill that makes every lawsuit frivolous. This really doesn’t seem to be in the best interest of the working people,” Templin said. “There seems to be this assumption that lawyers are just evil devils and workers are just freeloaders looking to sue and the business community is just saints and angels. And that’s just not the reality of what we’re experiencing as advocates of working people each and every day.”

In passing HB 7005, members of the House Pandemics & Public Emergencies Committee tacked on three amendments, including one that altered the definition of a COVID-related claim to include variants and mutations of the virus.

Bill sponsor Colleen Burton, a Lakeland Republican who chairs the House Health & Human Services Committee, said staying safe during the COVID-19 pandemic has been a daunting task for everyone, but it has been more difficult for health care providers.

“Those who have been providing care and services under exceedingly difficult conditions deserve protections from frivolous lawsuits,” she said. “There’s a balancing act because patients and residents deserve protections from bad actors.”

The House committee also rejected a number of amendments proposed by Democrats, including a proposal by Rep. Fentrice Driskel, D-Tampa, to exclude from liability protections providers that had been cited by state or federal agencies for more than one infection-prevention and control deficiency in 2017, 2018 or 2019.

Driskell said she would be willing to alter the amendment but that the “basic concept here is we don’t want to protect the bad actors.”

Driskell’s proposal was opposed by the nursing home industry.