SB 72 — Civil Liability for Damages Relating to COVID-19

Florida Senate - 2021 CS for SB 72 FirstBy Engrossedthe 202172e1Committee Aon billRules; to be entitled An act relating to civil liability for damages relating to COVID-19;

and Senators Brandes, Perry, Baxley, and Hutson 595-02736-21 202172c1 A bill to be entitled An act relating to civil liability for damages relating to COVID-19;

providing applicability;

providing that the act provides the exclusive cause of action for COVID-19 related claims against health care providers;

providing applicability;

2224 WHEREAS, an outbreak of the disease known as COVID-19, which is caused by a novel coronavirus that was not previously found in humans, occurred in Hubei province, China, in late 2019, and has currently been detected in more than 89 countries, including the United States, and WHEREAS, COVID-19 is a severe respiratory disease that can result in illness or death and is caused by the person-to-person spread of the novel coronavirus, and WHEREAS, COVID-19, as a viral agent capable of causing extensive loss of life or serious disability, is deadly, and WHEREAS, the transmission of COVID-19 is a threat to human health in this state, and WHEREAS, the Secretary of the United States Department of Health and Human Services declared on January 31, 2020, that a public health emergency exists in the United States due to confirmed cases of COVID-19 in this country, and WHEREAS, on March 1, 2020, the State of Florida Department of Health, in coordination with Governor Ron DeSantis, first declared a public health emergency based on the spread of COVID 19, and WHEREAS, throughout the declared state of emergency, the Governor’s executive orders included industry-specific restrictions to prevent the spread of COVID-19 based on the best information available at the time, allowing and encouraging certain businesses to continue to safely operate, and WHEREAS, a strong and vibrant economy is essential to ensure that Floridians may continue in their meaningful work and ultimately return to the quality of life they enjoyed before the COVID-19 outbreak, and WHEREAS, Floridians must be allowed to earn a living and support their families without unreasonable government intrusion, and WHEREAS, the United States Centers for Disease Control and Prevention has issued health guidance to all state and local governments and all citizens, and WHEREAS, in March 2020, the Centers for Medicare and Medicaid Services recommended the deferral of nonessential surgeries and other procedures, and WHEREAS, the guidance from the Centers for Medicare and Medicaid Services to defer medical procedures was based in part on its recognition that the conservation of critical health care resources is essential, and WHEREAS, on March 20, 2020, the Governor issued Executive Order 20-72, which prohibited health care providers “from providing any medically unnecessary, non-urgent or non-emergency procedure or surgery which, if delayed, does not place a patient’s immediate health, safety, or well-being at risk, or will, if delayed, not contribute to the worsening of a serious or life-threatening medical condition,” and WHEREAS, on April 29, 2020, the Governor issued Executive Order 20-112, which allowed health care providers to perform procedures prohibited by the earlier order if the health care provider had adequate supplies of personal protective equipment and satisfied other conditions, and WHEREAS, medical experts have been racing to develop vaccines and to learn how COVID-19 is transmitted and how best to treat those infected with the disease, and WHEREAS, the Federal Government, along with state and local governments, has sought to slow the spread of COVID-19 through travel bans and restrictions, quarantines, lockdowns, social distancing, and the closure of businesses or limitations on business activities, including limitations on the provision of medical services, and WHEREAS, health care providers, including hospitals, doctors, nurses, and other health care facilities and workers, have struggled to acquire personal protective equipment and other supplies to protect against the risk of COVID-19 transmission and medications used in the treatment of the disease, and WHEREAS, the circumstances of the COVID-19 pandemic have made it difficult or impossible for health care providers to maintain ideal levels of staffing, and WHEREAS, health care providers are essential to the residents of this state’s survival of the pandemic, and health care providers have continued to treat patients despite the potential, and still not fully known, risks of exposure to COVID-19, and WHEREAS, while many actions may seem reasonable during the pandemic, some may attempt to construe these actions differently in hindsight when calm is restored, and WHEREAS, as the pandemic continues and recovery begins, health care providers must be able to remain focused on serving the health care needs of their respective communities and not on the potential for unfounded lawsuits, and WHEREAS, the Legislature finds that it is an overpowering public necessity to enact legislation that will deter unfounded lawsuits against individuals, businesses, health care providers, and other entities based on COVID-19-related claims, while allowing meritorious claims to proceed, and WHEREAS, the Legislature finds that the unprecedented and rare nature of the COVID-19 pandemic, together with the indefinite legal environment that has followed, requires the Legislature to act swiftly and decisively, NOW, THEREFORE, 116118 Be It Enacted by the Legislature of the State of Florida:

118120 Section 1. Section 768.38, Florida Statutes, is created to read:

269271 The term does not include a claim alleging that an act or omission by a health care provider caused a person to contract COVID-19 or a derivative claim to such claim unless the person was a resident or patient of the health care provider or a person seeking care or treatment from the health care provider.

(b) Substantial compliancereliance withupon government-issued health standards specific to infectious diseases in the absence of standards specifically applicable to COVID-19;

(6) APPLICATION(6) INTERACTION PERIOD.—ThisWITH OTHER LAWS.— (a) This section appliesis in addition to claimsother thatprovisions haveof accruedlaw, beforeincluding, thebut effectivenot datelimited ofto, thischapters act400, 429, 766, and within768, 1and yearsupersedes afterany theconflicting effectiveprovision dateof law but only to the extent of thisthe act.conflict.

(7) INTERACTION(b) This WITH OTHER LAWS.— (a) This section doesprovides notthe createexclusive a new cause of action butfor insteada appliesCOVID-19-related inclaim additionagainst toa anyhealth othercare applicableprovider. provisions of law, including, but not limited to, chapters 400, 429, 766, and 768.

This(c) This section controlsdoes overnot anyapply conflicting provision of law, but only to theclaims extentgoverned ofby thechapter conflict.440.

(b) This section does not apply to claims governed by chapter 440.

Section 4. This act applies retroactivelyto causes of action that accrue within 1 year after the effective date of this act and prospectively.applies retroactively.