On March 29, 2021, Florida Governor Ron DeSantis signed a bill into law that creates a one-year statute of limitations and protects health care providers from liability for unfounded COVID-19-related claims, while allowing for meritorious lawsuits to proceed. These protections were passed based on the Legislature’s recognition of the essential nature of health care services.
Procedurally, the law requires dismissal of any COVID-19-related complaint made against a health care provider not pled with particularity. This means that plaintiffs must allege facts “in sufficient detail to support each element of the claim.” While affidavits are not required to support a COVID-19-related claim under this new law, the law leaves the general medical malpractice provisions of law contained within Chapter 766 of the Florida Statutes unaltered.
The new law provides protections to health care providers in the form of a heightened standard of proof, which is one of gross negligence or intentional misconduct. It also provides prospective defendants with specific affirmative defenses for health care services performed in substantial compliance with government-issued health care standards promulgated in response to COVID-19. In addition, it includes an affirmative defense where substantial compliance with these standards was “not possible because there was insufficient time to implement the standard.”
Under the law, a COVID-19-related claim would include one arising from issues surrounding the diagnosis and treatment of COVID-19; novel and experimental treatments offered to combat COVID-19; transmission of COVID-19 within a health care setting; medical or surgical care delays based on a health care provider’s interpretation of COVID-19 response standards; acts or omissions in responding to emergencies where treatment is impacted by the lack of resources resulting from COVID-19; and injuries sustained in the presence of COVID-19 where the virus results in the exacerbation of a patient’s pre-existing condition.
Per the new law, the statute of limitations that applies to a COVID-19-related claim is “within 1 year after the later of the date of death due to COVID-19, hospitalization related to COVID-19, or the first diagnosis of COVID-19 which forms the basis of the action,” if the claim arises from the transmission, diagnosis, or treatment of COVID-19. However, if the claim is otherwise, such as one that arises from the delay or cancellation of a procedure, the action must “commence within 1 year after the cause of action accrues.” Notwithstanding the above, the law states that “an action for a COVID-19-related claim that accrued before the effective date of this act must commence within 1 year after the effective date of this act,” which was March 29, 2021.
Lastly, the new law provides for a separate “application period,” which indicates that all of its provisions apply to claims that accrue before March 29, 2021, and until one year from this date.
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