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Attorney warns COVID liability protection legislation could backfire, hurting businesses

by | Mar 22, 2021


COVID liability protection bills before the Florida House and Senate are designed to make it more difficult for businesses and healthcare providers to be sued by those claiming personal injury or wrongful death claims stemming from COVID-19.

However, one attorney who defends businesses in these types of cases says the bills could actually backfire and bring more harm than protection.

The bills aim to protect businesses by requiring the claims to be extremely specific, with sufficient facts to satisfy the claims. Claims must also include a sworn affidavit from a physician attesting that “within a reasonable degree of medical certainty, the alleged injuries or damages were the result of the defendant’s acts or omissions.” Then the court must determine if the defendant made a good-faith effort to comply with government health standards and guidelines and even if they did not comply with those standards, the plaintiff must show convincing evidence of “gross negligence,” according to the bills.

However, Angela de Cespedes, with Saul Ewing Arnstein & Lehr of Miami disagrees these bills will defer COVID-related lawsuits and warns these bills could actually provide a roadmap for personal injury and wrongful death attorneys on how to successfully prosecute these claims.

Over the last 20 years, she has defended of a wide range of businesses in personal injury and wrongful death cases.

“I want to be clear that I agree wholeheartedly that we need protection for these medical services providers and for businesses in general. I think that these COVID liability shield laws are necessary and essential. I just want to make sure that we’re doing it the right way because the way that we have it structured now, I actually think that this is going to create a situation where we have more of these suits versus less because we haven’t done enough to give these laws the teeth they need to actually be effective,” she told The Capitolist.

De Cespedes explained that the current legislation allows for the defendant to have too much out of pocket cost upfront before the person filing the suit has to provide any proof that the defendant caused the plaintiff’s pandemic-related death or hospitalization. She said proving that is almost impossible, but the defendant would potentially spend tens of thousands of dollars, just to get to that point. She said defendants would most likely decide to settle, rather than go through all the upfront expenditures.

She compared that process to the standard medical malpractice procedure, which she preferred over the proposed bills. She said in malpractice suits it is on the plaintiff to lay out more of their case before the defendants have to spend too much money defending themselves.

Opponents of the bills before the Florida Legislature have said it would be difficult to find physicians willing to sign such an affidavit as outlined in the bills. De Cespedes disagrees, saying that personal injury and wrongful death attorneys have many “medical experts” who would be willing to sign such an affidavit.

De Cespedes said with requirements more like medical malpractice, the bar would be set much higher. She said malpractice suits require the plaintiff to provide a list of all their healthcare providers who treated the plaintiff for harm stemming from the alleged malpractice. It requires a list of all the health care providers seen by the plaintiff for a certain time period in and around when they claimed that they were injured. It also requires the plaintiff to turn over copies of all their medical records that the treating physicians are relying on when signing the “Affidavit of Merit.”

De Cespedes explained in a malpractice suit, the plaintiff has to wait 90 days after sending the defendant the notice before filing suit. This allows those facing a suit to fully reject the suit, and say to the plaintiff, “we’re confident that our defenses are going to prevail.” Or they can go ahead and make a settlement offer or try to resolve the claim at that point, pre-suit, avoiding all the expenses of taking the case to court. They also have the option of going ahead and admitting that they’re liable but would like to have an arbitration to determine damages.

She said following the malpractice guidelines would put more teeth in the proposed bills and make any ensuing cases less financially stressful for the businesses or healthcare providers.

Florida Senator Jeff Brandes (R-District 24), SB 72’s sponsor, said de Cespedes’ claims have been considered.

“We have had this legislation reviewed by literally dozens of attorneys who practice in this field,” Brandes told The Capitolist.

He disagreed with de Cespedes’ characterization of the physician affidavit.

He said, “The legislation sets a process by which if you are going to bring a suit against a business that’s not a healthcare provider, you must have a doctor sign off that there’s a there’s a rational nexus between you’re (contraction of ) COVID and the business. This requires a licensed Florida doctor, not just any medical expert witness.”

“That’s a higher burden than a medical expert,” he reiterated.

He also explained his legislation requires that the plaintiff propose what the business or healthcare provider did was grossly negligent, not just simple negligence.

“It has to be almost an intentional act and then they have to prove that with clear and convincing evidence. So these are very high bars,” Brandes said.

He told The Capitolist, “I am very confident (SB 72) will pass and I’m very confident it will deter a sue and settle culture and lawsuits that are so prevalent in Florida.”

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