Attorney warns COVID liability protection legislation could backfire, hurting businesses
COVID liability protection laws in front of the Florida House and Senate are designed to make it harder for businesses and healthcare providers to be sued by those who claim personal injury or death as a result of COVID-19.
However, a lawyer defending companies in such cases says the bills actually backfire and could do more harm than protection.
The bills aim to protect businesses by requiring that the claims be extremely specific and that they have sufficient facts to satisfy the claims. Claims must also include an affidavit from a doctor stating that “the alleged injury or damage was due to the actions or omissions of the defendant with reasonable medical certainty.” The court must then determine whether the defendant made good faith efforts to comply with government health standards and guidelines, and even if those standards were not met, the bill must provide convincing evidence of “gross negligence” under the bill.
However, Angela de CespedesSince Saul Ewing Arnstein & Lehr of Miami disagrees, these bills will postpone COVID-related lawsuits and warn that these bills may actually provide a road map for personal injury and lawyers on how to successfully pursue these claims.
Over the past 20 years, she has defended a wide variety of corporations in personal injury and death cases.
“I want to make it clear that I totally agree that we need protection for these medical providers and for companies in general. I think these COVID liability protection laws are necessary and essential. I just want to make sure we get it right because the way we structured it now I actually think this is going to create a situation where we have more of these suits than less because we haven’t done it enough, to give these laws the teeth they need to actually be effective, ”she told The Capitolist.
De Cespedes stated that current legislation allows the defendant to overpay out of pocket before the person filing the lawsuit is required to provide evidence that the defendant caused the plaintiff’s pandemic death or hospitalization. She said proving that it is nearly impossible, but the defendant would potentially spend tens of thousands of dollars just to get to that point. She said the defendants would most likely choose to settle instead of doing all the upfront spending.
She compared this process to the standard medical malpractice procedure, which she preferred to the proposed bills. She said it is up to the plaintiff to show more of her case in malpractice lawsuits before the defendants have to spend too much money to defend themselves.
Opponents of the Florida bills said it would be difficult to find doctors willing to sign such an affidavit as set out in the bills. De Cespedes disagrees, saying that personal injury and death lawyers have many “medical experts” willing to sign such an affidavit.
De Cespedes said having requirements more like medical misconduct would raise the bar much higher. She said that misconduct lawsuit requires the plaintiff to provide a list of all of his health care providers who have treated the plaintiff for harm resulting from the alleged wrongdoing. It requires a list of all health care providers the plaintiff saw in and around him for a period of time when he claimed he was injured. The claimant must also provide copies of all of their medical records, which the treating physicians rely on to sign the “affidavit”.
De Cespedes, on a misconduct lawsuit, stated that the plaintiff had to wait 90 days after sending the notice to the defendant before filing a lawsuit. This enables those facing a lawsuit to completely dismiss the lawsuit and tell the plaintiff, “We are confident that our defense will prevail.” Or they can make a settlement offer or try to resolve the claim at this point prior to filing the lawsuit, avoiding all of the costs of bringing the lawsuit. They also have the option to admit they are liable but want arbitration to determine the damage.
She said following the misconduct guidelines would put more teeth in the proposed bills and make any subsequent cases less financially burdensome for the company or health care provider.
Florida Senator Jeff Brandes (R-District 24), the sponsor of SB 72, said de Cespedes’ claims had been taken into account.
“We have had literally dozens of lawyers reviewing this legislation in the field,” Brandes told The Capitolist.
He disagreed with de Cespedes’ characterization of the doctor’s affidavit.
He said, “Legislation sets out a process whereby if you want to bring a lawsuit against a non-healthcare company, you must have a doctor de-register that there is a rational relationship between you (contraction of). COVID and business. This requires a licensed Florida physician, not some medical expert. “
“That’s a greater burden than a medical professional,” he repeated.
He also stated that his legislation required the plaintiff to suggest what the company or health care provider did with gross negligence rather than negligence.
“It has to be almost a premeditated act and then you have to prove it with clear and convincing evidence. So these are very tall bars, ”said Brandes.
He told The Capitolist, “I am very confident that (SB 72) will pass, and I am very confident that it will deter a lawsuit and resolve the culture and lawsuits that are so prevalent in Florida.”