Florida’s Capitol, Jan. 6, 2021. Credit: Michael Moline/Florida Phoenix
Barbara DeVane, lobbyist since 1972 for progressive causes in Tallahassee, offered some historical perspective last week to several senators considering whether to shield medical institutions, including hospitals and nursing homes, from liability from COVID lawsuits.
The Senate’s Judiciary Committee was debating a bill by its own chairman — Pinellas Republican Jeff Brandes — and voting down a series of Democratic amendments to weaken the bill.
To DeVane, representing Florida NOW and the Florida Alliance of Retired Americans, this was just another chapter in a decades-long campaign to restrict access to the courtroom.
“The tort reformers come and go, about every 20 years,” she testified.
“And here we go again. The only people that this bill will protect are the owners, the corporate owners, of nursing homes. They make a lot of money off of us who are residents in nursing homes, and they want to make more with bills like this.”
Brandes, though, pushing for protecting businesses, including the health care industry, from COVID lawsuits, reminded committee members of the confusion during the pandemic’s early days, when nobody understood how to guard against infection.
“We are asking in this piece of legislation that we protect our health-care industry that has gone over and above the call of duty in order to protect and serve every resident of the state who needed help.”
That’s how the sides line up in a sharp debate over COVID liability protection and who will benefit most. Florida’s businesses, lawyers, and lobbyists? What about ordinary people who got infected on the job or in a health care facility?
House and Senate leaders, with backing from Gov. Ron DeSantis, are fast-tracking separate bills erecting barriers to lawsuits for people suing general businesses and medical providers for exposing them to the coronavirus.
It’s the latest battle in a decades-long war over tort reform between the cream of Florida’s business lobby and the state’s trial lawyers in the form of the Florida Justice Association — the latter allied with groups dedicated to looking out for the little guy, including DeVane’s groups and the AFL-CIO.
Torts are wrongful acts amenable to compensation through the civil trial system: People who’ve suffered harm — or plaintiffs — hire attorneys to press their claims in court, generally paying a share of whatever they recover through trials or settlements.
Tort reformers want to make it harder for them to do that by erecting barriers to the courthouse, they contend on the ground that the process is subject to abuse that can harm small businesses and enrich unscrupulous lawyers.
Business interests have been grinding away at tort reform for decades in areas including workers’ compensation insurance, personal injury protection (PIP) auto coverage, property insurance, and more. (Here’s a rundown by the Florida Justice Reform Institute, a tort reform group.)
Democratic state Sen. Tina Polsky, a mediation attorney who represents Palm Beach County and part of Broward, like DeVane, sees the push for COVID liability shields as one more whack at the tort system.
“I think it is part of the process of eventually getting to tort reform. It’s unique circumstances — if we didn’t have the COVID pandemic these particular bills wouldn’t be here,” Polsky told the Phoenix following the committee hearing.
But to House and Senate leaders, tort reform “is a priority, and they are looking for ways to get there. This is one of the vehicles,” she said.
The Florida Phoenix reported here about the details of the legislation targeting lawsuits against businesses, which also would apply to actions against individuals, charitable organizations, nonprofits, public or private educational institutions, government entities, and religious institutions.
The News Service of Florida provided a good explainer on the medical angle here. The bill would cover individual practitioners including doctors and nurses, plus hospitals, nursing homes, and other medical facilities. Nursing homes and assisted living facilities alone have seen 9,710 resident and 93 staff deaths, plus 231 deaths under investigation, according to the latest Florida Department of Health data.
The gist of the legislation is that businesses and health care providers can knock out lawsuits early if they followed the best available medical advice and government guidelines.
The House and Senate bills contain most of the asks sought by a Reset Liability Task Force organized by the most ardent tort reformers in Florida, including the justice reform institute, Associated Industries of Florida, the National Federation of Independent Business, the Florida Retail Federation, the Florida Restaurant & Lodging Association, the Florida Hospital Association, and the Florida Senior Living Association, plus insurance industry groups — 60 organizations in all.
The groups are in line to win one goal, the task force report says — “exempting essential businesses entirely from COVID-19 liability.”
“Blanket immunity” for “bad actors”
To critics, including Stephen Cain, a Miami trial attorney and an officer with the Florida Justice Association, the legislation would reward “bad actors” with “blanket immunity” by making it all but impossible to go to court, as he testified from an earlier legislative committee meeting.
Cain represents the family of Gerardo “Gerry” Gutierrez, who’s suing Publix on allegations that he caught COVID and died after the company refused to let workers wear face masks on the job, according his law firm.
“Floridians are being misled on purpose about the dangers this legislation represents for people working on the frontlines in our airports, retail stores, delivering packages, and so many other places,” said Mark Ferrulo, executive director of Progress Florida, in a written statement.
“This is another case of profits over people and bowing to special interests instead of serving the public interest. Legislators supporting this sham should be ashamed.”
It’s not clear how many lawsuits we’re taking about.
William Large, president of the justice reform institute, has identified 49 COVID-related lawsuits filed in Florida and acknowledges he has missed some. Nine of them target operators of cruise ships, alleging failure to protect passengers or crew members against the coronavirus.
Eight are pending in federal court, and so would be outside the reach of the legislation. The ninth cruise claim is pending in Miami-Dade County Circuit Court.
Another nine cases raise claims against nursing homes in state trial courts, although three of these have been removed to U.S. district courts. Twenty-two accuse the Duval County Sheriff’s Department of exposing inmates to the virus. Other accuse employers and business owners of failure to take care against exposing workers and customers.
“There is a wave of litigation coming,” Large said during testimony before Brandes’ committee last week.
Robin Khanal, an Orlando lawyer who defends nursing homes and assisted living facilities in liability cases, testified that his firm alone is working on 60 claims against clients.
Meanwhile, the American Tort Reform Association issued a report identifying more than $6.6 million in attorney advertisements in Florida seeking COVID-related work. Additionally, the nonpartisan Florida TaxWatch has estimated COVID-related litigation could cost the state’s economy $27.6 billion and as much as 356,000 jobs per year.
Critics contend these fears are overblown.
“There aren’t a flood of lawsuits, particularly with the business liability,” Polsky told the Phoenix.
“Let’s be realistic: Lawyers take these cases on contingency. They’re not going to get paid if they lose the case. They’re going to have to put up a lot of money — especially in these medical-type cases. You need experts. That costs a lot of money.”
“Judicial hell hole”
Brandes takes a dimmer view of the trial bar.
“Florida is considered a judicial hell hole. The two things that we know when we look up in Florida is you’re going to see the sun and a trial lawyer’s face on a billboard,” he told the Phoenix in a telephone interview.
“What we’re trying to do is sift out the legitimate claims where people were truly grossly negligent, If they knowingly told people who had active COVID to come back to work, clearly that would be considered grossly negligent.”
These bills represent the vanguard of tort reform efforts in the Legislature this year. PIP reform is back, via SB 54, which would replace a liability system business considers rife with fraud with more straightforward bodily injury coverage. That bill also would make it harder for plaintiffs to claim bad faith by insurance companies if they delay payouts.
“Florida businesses and health care providers are very concerned about lawsuits. I think their voices have been heard by leaders of the House and Senate on those subjects,” Large said.
Notably, Republican attorney Anitere Flores has termed out of the Senate, which in recent years has been more skeptical than the House of tort reform. As chair of the Banking & Insurance Committee, she rode herd on the reformers for the past two years. Her replacement in that seat is fellow Republican Jim Boyd of Bradenton, who lists his employment as insurance and investments.
Polsky finds the situation worrisome.
“If they are successful with this [COVID liability limits], then — not that there’ll be another pandemic — but why not keep going? It’s what we have with a woman’s right to choose — a chipping away.”
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