On March 29, 2021, Governor Ron DeSantis signed legislation protecting certain business entities, educational institutions, governmental entities, religious institutions, and individuals from liability for claims related to COVID-19. The law is designed to curb the threat of unknown and potentially unlimited liability to such entities and institutions, some of which the pandemic has already left vulnerable. It includes two new Florida Statutes, Sections 768.38 and 768.381, one of which is specific to healthcare providers.
The first new statute, Section 768.38, affords immunity from civil liability to a defendant that made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time of the incident. Such immunity is granted to a defendant even if more than one source or set of standards or guidance was authoritative or controlling at the time of the incident alleged in a plaintiff’s complaint. Under this section, a defendant’s good faith effort to substantially comply with at least one set of standards or guidance is sufficient to avoid civil liability for a “COVID-19-related claim.” Section 768.38 broadly defines a “COVID 19-related claim” to mean “civil liability claim against a person, including a natural person, a business entity, an educational institution, a governmental entity, or a religious institution, which arises from or is related to COVID-19, otherwise known as the novel coronavirus. The term includes any such claim for damages, injury, or death.”
Even if a plaintiff can prove that a defendant failed to make a good faith effort to comply, a defendant will not be found liable for any act or omission associated with a COVID-19-related claim, unless gross negligence is established. A plaintiff must be able to support its allegations with an affidavit, or sworn statement, from an actively licensed physician. The physician must be willing to attest that the plaintiff’s COVID-19-related damages, injury, or death occurred because of the defendant’s actions or inaction. Furthermore, the statute of limitations for a COVID-19-related claim is only one year, as opposed to four years for most personal injury claims.
The second new statute, Section 768.381, protects certain healthcare providers from COVID-19-related liability. Specifically, it protects clinical laboratories, health care practitioners, health centers, home health aides, pharmacies, and others from liability. Under this section, a healthcare provider can be found liable for a COVID-19-related claim only if a plaintiff can prove that the provider was grossly negligent or engaged in intentional misconduct. Moreover, a provider may be able to avoid liability if the defendant can establish an affirmative defense to a COVID-19-related claim. The defenses available to a healthcare provider include, but are not limited to, the healthcare provider’s inability to substantially comply with health standards due to insufficient time, conflicting standards, or a shortage of supplies. The statute of limitations for a COVID-19-related claim against health care providers is also one year limitation period. Thus, plaintiffs with valid COVID-19-related claims must act swiftly in initiating a legal proceeding to preserve their claims.
Taken together, these new provisions will substantially limit potential claims related to COVID-19.