Combating the Impact of COVID-19: Health Care Providers

Just as Florida Statute, section 768.38 protects non-healthcare providers, so too does its counterpart, Florida Statute, section 768.381 which protects healthcare providers from civil liability related to “COVID-19 related claims.” The statute defines “COVID-19 related claims” as those related to, inter alia, the diagnosis, treatment, or failure to treat a person with COVID-19, provision of a novel or experimental COVID-19 treatment, transmission of COVID-19, delay or cancellation of a medical procedure because of COVID-19, act or omission with respect to an emergency medical condition which was the result of a lack of resources directly cause by pandemic, and provision of treatment to a patient diagnosed with COVID-19 whose injuries were exacerbated by preexisting conditions.

The statute sets forth both pleading requirements and burdens of proof.  As to pleading requirements, in any civil action against a healthcare provider based on a COVID-19 related claim, the complaint must be pled with particularity by alleging facts sufficient detail to support each element of the claim. Unlike section 768.38, this section does not require a supporting affidavit.

In terms of the burden of proof, the plaintiff must prove by the greater weight of the evidence that the health care provider was grossly negligent or engaged in intentional misconduct.  However, if the health care provider “proves by the greater weight of the evidence the existence of an affirmative defense” the healthcare provider “has no liability for that claim.”  The statute enumerates 5 non-exclusive affirmative defenses that may apply to a COVID-19 related claim, including:

1. Substantial compliance with government-issued health standards related to COVID;
2. Substantial compliance with government-issued health standards related to infectious disease, absence standards applicable to COVID;
3. Substantial compliance with COVID standards and other standards in conflict; and
4. Substantial compliance is not possible because of insufficient time to implement or shortage of necessary supplies.

The aim of this statute is to protect health care providers from COVID-19 related claims and, like its business counterpart, it sets a difficult course for a plaintiff seeking to bring a cause of action for a COVID-19 related injury.

To learn more about this topic or find out your legal rights, contact Sheehe & Associates at 305-379-3515.