HB 7005 — Civil Liability for Covid-19-related Claims Against Certain Health Care Providers

F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 7005 2021 A bill to be entitled An act relating to civil liability for COVID-19- related claims against certain health care providers;

specifying the timeframe within which a civil action may be commenced;

providing for applicability;

providing for future repeal unless reenacted;

768.381 Liability protections for COVID-19-related claims against certain health care providers.— (1) LEGISLATIVEThe FINDINGS AND INTENT.—The Legislature finds that the COVID-19 outbreak in this state threatens the continued viability of certain health care institutions and other entities Pagethat 1serve the overall well- being of 8the CODING:state.

The threat of unknown and potentially unbounded liability to such institutions and entities, in the Page 1 of 7 CODING:

hb7005-02-c2hb7005-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 7005 2021 wake of a pandemic that contributehas already left many of these institutions vulnerable, has created an overpowering public necessity to theprovide overallan well-beingimmediate ofand theremedial state.legislative solution.

TheTherefore, threatthe ofLegislature unknownintends andfor potentiallythese unbounded liability to such institutions and entities,entities into theenjoy wakeheightened ofprotections aagainst pandemiccertain thattypes has already left many of thesecivil institutionsliability vulnerable,as hasa createdresult anof overpoweringthe publicCOVID-19 necessitypandemic. to provide an immediate and remedial legislative solution.

Therefore, the Legislature intends for these institutions and entities to enjoy heightened legal protections against liability as a result of the COVID-19 pandemic.

The Legislature finds that the public interest as a whole is best served by providing relief to these institutions and entities so that they may remain viable and continue to contributeserve tothe this state.

(2) DEFINITIONS.—AsAs used in this section, the term:

(b) "COVID-19-related medical claim" means a civiltort liability claim broughtarising againstunder achapter health400, carechapter provider429, or chapter 766, which is based on a defendant's breach of the applicable standard of care or duty of care owedand tothat: a patient or a resident related to:

DiagnosisCaused or treatment of, or failure to diagnose or treat, a person forto contract COVID-19;

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Arose from the defendant's delay or omission in performing a surgical procedure, which delay or omission was directly caused by the COVID-19 pandemic;

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hb7005-02-c2hb7005-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 7005 2021 2.3.

ProvisionArose offrom athe noveldefendant's act or experimentalomission COVID-19with treatment;respect to an emergency medical condition as defined in s.

3.395.002, and which act or omission was the result of a lack of resources directly caused by the COVID-19 pandemic;

Transmission of COVID-19;

DelayArose orfrom cancellationthe ofdefendant's aprovision surgery or a delay or cancellation of a medicalnovel procedure, a test, or anexperimental appointmentCOVID-19 basedtreatment onto a healthpatient carediagnosed provider'swith interpretationCOVID-19; or application of government-issued health standards or guidance specifically relating to the COVID-19 emergency;

AnArose actfrom orthe omissiondefendant's provision of treatment to a patient diagnosed with respectCOVID-19 whose injuries were directly related to an emergencyexacerbation medicalof conditionthe aspatient's definedpreexisting inconditions s.by COVID-19.

395.002,(c) which"COVID-19-related actnegligence claim" means a tort claim brought against a health care provider not arising under chapter 400, chapter 429, or omissionchapter was766, thewhich resultis ofbased on a lackdefendant's breach of resourcesthe directlyapplicable duty of care and that caused bya theperson COVID-to 19contract pandemic.COVID-19.

(c) "COVID-19-related negligence claim" means a civil liability claim brought against a health care provider which is based on a defendant's breach of the applicable duty of care which caused a person who is not a patient or a resident to contract COVID-19.

A federally qualified health center as defined in 42 PageU.S.C. 3 of 8 CODING:

s.

1396d(l)(2)(B), as that definition exists on the Page 3 of 7 CODING:

hb7005-02-c2hb7005-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 7005 2021 U.S.C.effective date of this act.

s.

1396d(l)(2)(B), as that definition exists on the effective date of this act.

(e)(3) "Resident"With meansrespect ato person residing in and receiving care from a nursingCOVID-19-related facilitymedical licensedclaim: under chapter 400 or an assisted living facility licensed under chapter 429.

(3)(a) COVID-19-RELATEDIt MEDICALis CLAIMS.—Thean provisionsaffirmative ofdefense thisthat subsectionthe applydefendant tocomplied awith COVID-19-relatedgovernment-issued medicalhealth claim.standards or guidance in effect at the time the cause of action accrued.

(a)(b) The complaintfact finder must beconsider pledall withrelevant particularitysurrounding bycircumstances, allegingincluding factsany inrelevant sufficienteffects detailof tothe supportCOVID-19 eachpandemic, elementin ofdetermining the claim.appropriate standard of care.

(b)(c) IfA thedefendant complaint is not pledliable withfor particularity,any theact courtor mustomission dismissunless thesuch action.act or omission constitutes gross negligence as defined in s.

Page768.72(2)(b) 4or ofintentional 8misconduct CODING:as defined in s.

768.72(2)(a).

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hb7005-02-c2hb7005-01-c1 F L O R I D A H O U S E O F R E P R E S E N T A T I V E S CS/CS/HBCS/HB 7005 2021 (c)(4) AWith plaintiffrespect mustto provea byCOVID-19-related thenegligence greaterclaim: weight of the evidence that the health care provider was grossly negligent or engaged in intentional misconduct.

(d) The affirmative defenses that apply to a COVID-19- related claim against a health care provider include, in addition to any other affirmative defenses recognized by law, the health care provider's:

1.