Florida Bill to Provide Protection against Personal Injury Claims arising from COVID-19
On March 05, 2021, Florida House passed a controversial legislation, HB 7, which if passed by the Senate, would make proving personal injury arising from COVID-19 extremely difficult. Even Governor DeSantis showed his support for the bill. The bill is seen to be leaning in favor of the companies, giving ample liability defenses against the claims brought by their employees arising from contracting COVID-19.
If delved deeper into the bill, HB 7 mandates the claims arising from or related to COVID-19 to be pled with particularity, which sets a higher standard for a typical personal injury claim. Also, under the bill, a complaint would be required to be accompanied with a reasonable degree of medical certainty, the damages, injury or death to/of the complainant which occurred as a result of the defendant’s act or omissions. Further, the bill proposes that a judge, and not a jury, would be required to determine as a matter of law at the beginning of the case if the plaintiff has complied with the pleading requirements, whether the defendant had made an effort in good faith to comply with “authoritative or controlling government-issued health standards or guidance the time the cause of action accrued”, and limits evidence which proves that defendant made such a good faith effort. If the defendant is found to have acted in good faith, then he/she would be immune from any civil liability. However, if the good faith is not proven, then the matter proceeds like a normal case.
If HB 7 is passed, it would set an extremely heightened proof of burden for a case to be admitted. In a personal injury claim, the plaintiff would have to prove through convincing evidence that the defendant is grossly negligent. It not only heightens the proof of burden but only reduces the statute of limitation to one year from injury accrual. Lastly, the bill, if passed would be retroactive but would not apply to cases which may have already been filed.
With regards to the scope of the proposed law, it provides coverage for business, non-profits and charitable organizations, educational institutions, government entities, and religious organizations. However, the legislation excludes healthcare providers even if they meet definitions of a business, non-profit or charity, and the like.
If brought into action, HB 7 would definitely discourage claimants from filing personal injury claims arising or related to COVID-19. Even as of now, any claim arising or related to the pandemic is quite challenging due to lack of evidence. The legislation would clearly be in favor of the big insurance companies and business corporations. However, the employee and private complaints would suffer.
Senate Bill 74 is another legislation which is in the pipeline. It aims to provide a similar protection system to the healthcare providers. The legislation would cater to healthcare provider’s difficulty in providing ideal staffing levels and protects the healthcare providers from unnecessary claims. SB 74 would be applied to claims that relate to a healthcare provider’s failure to follow clinical authority of government-issue health standard or guidance related to the pandemic, or that a healthcare provider failed to interpret such guidance correctly, or a healthcare provider was negligent in providing novel or experimental treatment, or it failed to follow clinical authoritative or government-issued health standard or guidance relating to infectious disease in preventing transmission or diagnosing or treating to perform the pandemic.
If passed, both the legislations would provide great relief to the corporations and healthcare providers from frivolous lawsuits, and would reduce overall liability for COVID-19 claims. However, it would tremendously increase the burden on the claimant to prove their claims.