The new statutes also create qualified immunity for individuals, businesses and organizations facing COVID-19-related claims and establishes affirmative defenses specific to healthcare providers.

On March 29, 2021, Florida Governor Ron DeSantis signed into law Chapter 2021-1, designed to deter certain COVID-19-related lawsuits against a wide range of individuals, businesses, healthcare providers, and governmental and religious organizations. The legislation, which will be codified as sections 768.38 and 768.381 of the Florida Statutes, implements several new requirements applicable to a plaintiff bringing a “COVID-19-related claim.” This covers “a civil liability claim… which arises from or is related to COVID-19” or, in the case of a claim against a healthcare provider, “a civil liability claim” arising from, among other things, transmission of COVID-19; a diagnosis or treatment of, or failure to diagnose or treat, a person for COVID-19; the provision of a novel or experimental COVID-19 treatment; or delay or cancellation of a surgery or procedure due to a government-issued COVID-19-related health directive or guidance.

The newly adopted legislation aims to weed out meritless cases by, among other things:

1. Imposing heightened pleading/filing requirements on plaintiffs bringing COVID-19-related claims;
2. Increasing the burden of proof on such plaintiffs; and
3. Establishing a shortened time period within which plaintiffs must bring certain COVID-19-related claims.

The new statutes also create qualified immunity for individuals, businesses and organizations facing COVID-19-related claims and establishes affirmative defenses specific to healthcare providers (defined to include a wide range of healthcare workers such as providers under Fla. Stat. 408.803, clinical laboratories, federally qualified health centers, healthcare practitioners, healthcare professionals, home health aides and pharmacies).

Pleading and Filing Requirements

The new law provides that civil actions alleging a COVID-19-related claim must be pled with particularity—a special pleading standard typically reserved for cases in which a party is alleging fraud or mistake. Sections 768.38 and 768.381 provide that, if the complaint is not pled with particularity, it must be dismissed.

Moreover, in cases where a plaintiff files a complaint alleging a COVID-19-related claim against a person, business entity, government organization, religious institution or educational institution—i.e., not a COVID-19-related claim against a healthcare provider—the plaintiff “must submit an affidavit signed by a physician actively licensed in this state which attests to the physician’s belief, within a reasonable degree of medical certainty, that the plaintiff’s COVID-19-related damages, injury, or death occurred as a result of the defendant’s acts or omissions.” Ch. 2021-1, Sec. 1, s. 768.38(3)(b). If the plaintiff in such a case does not submit the required affidavit, the court must dismiss the action. Where a COVID-19-related claim is made against a healthcare provider, such as those healthcare provider-specific claims identified above, no physician’s affidavit is required as part of the pleading.

Qualified Immunity and Affirmative Defenses

Once the court determines that the complaint has been pled with particularity and is accompanied by an affidavit sufficient under the statute, the court is required to determine whether “the defendant made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.” If the court determines that the defendant did make such a good faith effort, the defendant is immune from civil liability. If the court determines that the defendant did not make such a good faith effort, the plaintiff may move forward with the action.

Regarding COVID-19-related claims against healthcare providers, Chapter 2021-1 recognizes a number of specific affirmative defenses to specific COVID-19-related claims, in particular the healthcare provider’s:

1. Substantial compliance with government-issued health standards specifically relating to COVID-19 or other relevant standards, including standards relating to the preservation or prioritization of supplies, materials or equipment;
2. Substantial compliance with government-issued health standards specific to infectious diseases in the absence of standards specifically applicable to COVID-19;
3. Substantial compliance with government-issued health standards relating to COVID-19 or other relevant standards was not possible due to the widespread shortages of necessary supplies, materials, equipment or personnel;
4. Substantial compliance with any applicable government-issued health standards relating to COVID-19 or other relevant standards if the applicable standards were in conflict; or
5. Substantial compliance with government-issued health standards relating to COVID-19 or other relevant standards was not possible because there was insufficient time to implement the standards. Ch. 2021-1, Sec. 2, s. 768.381(4).

If the healthcare provider establishes any of these affirmative defenses (or any other affirmative defense recognized by law), the healthcare provider has no liability for the COVID-19-related claim at issue.

Burdens of Proof and Standards for Liability

Under the new statute, in cases where a plaintiff files a complaint alleging a COVID-19-related claim against a person or entity other than a healthcare provider, the plaintiff bears the burden of proof to demonstrate that the defendant did not make a good faith effort to substantially comply with “authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.” Ch. 2021-1, Sec. 1, s. 768.38(3)(c)-(d). As noted above, if the court finds that the defendant did not make the required good faith effort to substantially comply with the guidance, the plaintiff’s case can move forward. However, the defendant may only be liable for any act or omission relating to the COVID-19-related claim if the plaintiff proves—by “clear and convincing evidence”—that the defendant acted with “at least gross negligence.” That standard (clear and convincing evidence) sets a higher bar than that which is normally applicable to civil claims, as plaintiffs typically need only prove its case by a preponderance of the evidence.

With respect to COVID-19-related claims against healthcare providers, it is—under the recent changes to the Florida Statutes—the plaintiff’s burden to prove, “by the greater weight of the evidence,” that the healthcare provider was “grossly negligent or engaged in intentional misconduct.” Ch. 2021-1, Sec. 2, s. 768.381(3). And if the defendant proves—by the greater weight of the evidence—the existence and application of any recognized affirmative defense (including those discussed above), the defendant healthcare provider has no liability for the claim to which the defense applies.

Statutes of Limitations

Section 768.38 establishes a general one-year statute of limitation for COVID-19-related claims; “[a] plaintiff must commence a civil action for a COVID-19-related claim within 1 year after the cause of action accrues or within 1 year after the effective date of this act if the cause of action accrued before the effective date of this act.” Ch. 2021-1, Sec. 1, s. 768.38(4).

Concerning COVID-19-related claims against a healthcare provider arising from the transmission, diagnosis or treatment of COVID-19, such actions must commence within one year after the later of (1) “the date of death due to COVID-19,” (2) “hospitalization related to COVID-19” or (3) “the first diagnosis of COVID-19 which forms the basis of the action.” Ch. 2021-1, Sec. 2, s. 768.381(5). For all other COVID-19-related claims against a healthcare provider (such as claims arising out of a delayed or canceled procedure), the action must commence within one year after the cause of action accrues.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Harvey W. Gurland, Jr., Justin M. L. Stern, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.