The Florida House moved one step closer Thursday to shielding businesses from lawsuits related to COVID-19, teeing up for passage a bill that would give Florida businesses some of the broadest protections in the country.
But a House panel earlier in the day also moved forward with a separate bill that would allow more medical malpractice lawsuits to be filed against physicians and hospitals, sending, some critics say, mixed messages to health care providers during the pandemic.
The full House spent less than two hours debating the business liability bill (HB 7), with the Republican majority shooting down six proposed amendments filed by Democrats.
The bill, sponsored by Rep. Lawrence McClure, R-Dover, would provide protections to businesses, schools and churches that have substantially complied with public health policies. The protections would apply in COVID-19-related lawsuits for damages, injuries or deaths.
The bill, in part, would raise a bar of proof in COVID-19 lawsuits from simple negligence to gross negligence and up evidentiary standards from the current “greater weight of the evidence” to “clear and convincing evidence.”
While the proposal focuses on shielding businesses from lawsuits, Democrats expressed concerns for employees, tens of thousands of whom have seen the denial of workers’ compensation insurance claims for COVID-19 infections.
Rep. Fentrice Driskell, D-Tampa, proposed an amendment that would have changed workers’ compensation laws to include a presumption that certain frontline workers who test positive for COVID-19 have been infected on the job.
The proposal would have applied to health care workers, emergency medical technicians, paramedics, law enforcement officers, firefighters and teachers and other school employees who were physically required to be at work.
Driskell said she was inspired by her sister, a teacher, a Tampa police officer who got infected on the job and a nurse who reached out to Driskell to say she was afraid because she wasn’t being provided enough personal protective equipment while at work.
“We are very quick to applaud our frontline workers,” Driskell said. “We tweet about it, we put it up on social media. We are glad for them, we are proud of them. Well, let’s honor them with some action. Let’s honor them with a pathway to have some protections.”
Driskell’s amendment was defeated in a 78-40 vote.
Rep. Ben Diamond, D-St. Petersburg, proposed an amendment that would have prevented employers from taking retaliatory action against employees who miss work because they have tested positive for COVID-19, they suspect they have COVID-19 or they are ordered to quarantine.
Diamond said the amendment is needed because “we have people in Florida who are nervous about calling in sick.”
Rep. Joe Geller, D-Aventura, said adding the employee protections could also make tourists feel safer about coming to Florida.
But Rep.Tommy Gregory, R-Sarasota, called the proposed amendment “redundant” and said employees already have those protections under law.
Businesses had been clamoring for protections from lawsuits before the COVID-19 pandemic but had been unsuccessful. The Republican-led Legislature, though, has promised to deliver relief from COVID-19-related litigation.
The House and Senate initially released identical protections for non-health care businesses, signaling a potential agreement. The chambers put lawsuit protections for health care providers in separate bills.
But Senate Judiciary Chairman Jeff Brandes, R-St. Petersburg, told The News Service of Florida on Tuesday that he plans to combine the protections for general businesses and health-care providers into one bill.
The House is slated to pass its bill Friday for non-health care businesses, making it one of the first two bills of this year’s legislative session to pass. Ultimately, the House and Senate would have to work out any differences in a final version.
Perhaps the most controversial part of the House bill is a provision that would require plaintiffs to obtain affidavits from Florida physicians attesting that the defendants’ acts or omissions caused the damages, injuries or deaths.
Businesses that courts deem to have “substantially” complied with government-issued health standards or guidance would be immune from liability.
Diamond tried unsuccessfully twice to alter the affidavit requirement during floor debate Thursday.
Meanwhile, the House Civil Justice & Property Rights Subcommittee earlier Thursday voted unanimously to advance a bill (HB 651) that involves medical malpractice lawsuits alleging wrongful deaths of single, childless adults. The bill would allow the parents of such adults to recover damages for mental pain and suffering, lifting a 20-year-plus ban on such claims.
The bill is sponsored by Rep. Spencer Roach, a North Fort Myers Republican who said the ban diminishes the lives of certain adults. He said it is a “free kill” policy for physicians and hospitals.
While the Republican-controlled House panel has voted along party lines on other lawsuit-related bills, Roach encouraged a bipartisan vote.
“If you’re a Republican and you ran on a campaign in which you talked about the sanctity of life and of holding bad actors accountable, you should vote up on his bill,” Roach said. “If you’re a Democrat and you ran a campaign to ensure every class of people enjoys equal access to courts, equal protections under the law, you should vote up on this bil.”
Jacksonville attorney and health care lobbyist Chris Nuland said the unanimous support by the panel was disappointing. He also pointed to other issues that physicians have faced, including bills last year that gave increased authority to advanced registered nurse practitioners and pharmacists. Physicians have long opposed such “scope of practice” expansions.
“It does not send a good message to physicians, especially when coupled with the scope of practice expansions from last year, the threat of increased malpractice premiums this year and the fact that even the COVID liability protections for physicians are not a guaranteed pass at this point,” said Nuland, who lobbies on behalf or physician specialty groups.
