Newly adopted Florida COVID-19 liability shield law is nation’s ‘most aggressive’

Focus on Business

By John Haughey | The Center Square

Florida Gov. Ron DeSantis was rocking as he signed the first bill sent to his desk by lawmakers during their 2021 legislative session – a fast-tracked measure instantly installing COVID-liability protections for businesses and health care providers.

Senate Bill 72, approved by the House Friday in an 83-31 vote, was ceremoniously signed into law by the governor Monday as a band played the Beatles’ "With A Little Help From My Friends" in a Capitol celebration.

“We don’t want to be in a situation where people are scared of being sued just for doing normal things,” DeSantis said while flanked by House Speaker Chris Sprowls, R-Palm Harbor, Senate President Wilton Simpson, R-Trilby, and Chief Financial Officer Jimmy Patronis.

“We want folks to be able to live their lives, provide opportunities for people to do different things and then let individuals make the decisions about what they want to do,” he added.

SB 72, sponsored by Sen. Jeff Brandes, R-St. Petersburg, was drafted from American Legislative Exchange Council (ALEC) model legislation to extend COVID-19 protections to businesses, schools, nonprofits, religious institutions and health care providers that make “good-faith efforts” to follow government health guidelines.

Under SB 72 and House companion, House Bill 7, filed by Rep. Lawrence McClure, R-Dover, a plaintiff filing a COVID-19 lawsuit must prove with “clear and convincing evidence” a defendant acted with “gross negligence.”

The new law – which went into effect with DeSantis’ signature but does not apply retroactively to filed suits – requires plaintiffs obtain affidavits from physicians attesting defendants’ acts or omissions caused damages, injuries or deaths.

In addition, the law raises the standard of proof in COVID-19 related lawsuits from the usual “preponderance of evidence” to “clear and convincing evidence” and requires cases be brought within one year of an alleged COVID-19-related problem.

“This is the most aggressive COVID liability protection bill in the United States of America,” Sprowls said.

Proponents, including business associations spearheaded by the Florida Chamber of Commerce, fear an avalanche of “predatory” lawsuits could cripple economic recovery from the pandemic.

“Florida’s businesses and health care facilities that continue to do their best to keep employees, customers and patients safe will no longer have to fear frivolous lawsuits as they continue relaunching Florida’s economy,” Chamber CEO Mark Wilson said.

“By signing this bill into law, Florida has once again acted decisively, and demonstrated to the rest of the nation that states can protect consumers and allow the economy to continue to prosper,” Florida Council of 100 Chair Syd Kitson said in a statement. “As a result, Florida is attracting entrepreneurs and companies from other states.”

Originally, SB 72/HB 7 precluded the health care industry with protections for providers, hospitals, clinics and physicians addressed in a separate Senate-House companion bill.

That measure was merged by the Senate Rules Committee on March 11 into SB 72, which was subsequently approved by the Senate, 24-15, on March 18, sending it to the House and, on Monday, to DeSantis’ desk.

Incorporating SB 74’s health care protections into SB 72 was necessary expediency, Simpson said. “We had businesses, frontline workers and health care that in the face of the tragedy they were facing last March, April and May had to go to work every day,” She said. “This bill was essential to protect those folks.”

All state legislatures during 2020 and 2021 sessions have deliberated on COVID-19 liability protections for businesses with Louisiana the only exception this year because its legislature hasn’t convened yet.

Florida’s SB 72 is similar to bills being considered or already adopted in Missouri, Nebraska, Montana, New Hampshire, North Dakota and Indiana.