The case for — and against — making it harder to sue health care facilities over COVID-19

TALLAHASSEE — One of the top Republican priorities during the legislative session would make it harder for patients and their families to sue health care providers in COVID-19-related cases.

Although destined to pass, the measures, Senate Bill 74 and House Bill 7005, have proven to be quite controversial. Detractors say it would make it harder for mistreated patients to hold nursing homes or hospitals accountable in a state with an already troubled health care system. Supporters say the state should shield health care providers — the heroes of the coronavirus pandemic — from unnecessary lawsuits.

The liability bills are not to be confused with other bills — SB 72 and HB 7 — which would protect non-health care businesses from COVID-19 lawsuits.

Let’s break down key arguments for and against the legislation.

Pro: A wave of lawsuits is coming

Civil defense attorneys have testified before lawmakers that they’re staring down dozens of coronavirus-related lawsuits. Robin Khanal, an Orlando-area attorney who advocates for long-term care facilities, has said he’s got more than 60 cases or potential cases on his desk. William Large, the president of the Florida Justice Reform Institute, said at least nine COVID-19 related lawsuits have already been filed against health care providers in Florida.

The American Tort Reform Association, which is in favor of the liability protections, estimated that Florida plaintiff attorneys had spent more than $6.6 million in advertising for COVID-19 legal services as of December.

Opponents of the bill say warnings about a potential onslaught of litigation are still speculative. But even if lawsuits are coming, many of them are likely justified, they say. This is particularly true when it comes to long-term care facilities.

Two decades ago, Florida, considered then to have one of the worst nursing home systems in the country, was swimming in lawsuits against providers. In 2001, the state enacted a slate of sweeping reforms to the long-term care industry in exchange for making it harder to sue the facilities.

Since then, patient advocates argue, care standards have slipped. The tough legal environment for plaintiffs remains, however. The liability proposals would only further stack the deck against aggrieved families and patients, they say.

“This (bill) gives a pass to nursing homes that already may have been bad,” said Jeff Johnson, the Florida director of the AARP.

Con: Liability protections as a “shield”

Adequate procedures for controlling infections. Making sure facilities were adequately staffed. Properly communicating with residents’ families. Long-term care facilities should have been good at all of the above before COVID-19 hit Florida, patient advocates argue. If they weren’t, residents fared much worse during the pandemic.

That’s not a COVID-19 problem, but under the liability protection bills, caregivers would use new legal protections to paper over past shortcomings.

“We don’t want them to hide behind this liability protection in cases of abuse and neglect,” said Olivia Babis, a public policy analyst for Disability Rights Florida.

But Jeff Brandes, R-St. Petersburg, the Senate sponsor of the liability measure, said the issues health care providers had during the pandemic had little to do with how they performed previously.

“This is a global pandemic where we had conflicting guidance. No country in the world was prepared for this,” Brandes told the Times/Herald. “This swept over us like a tsunami, and our health care providers were told to swim through it,”

Pro: Frivolous lawsuits distract care workers

Those who work in long-term health care and support the liability bills warn of distracted workers.

Dedicated employees who worked night and day during a brutal pandemic will be forced to undergo endless depositions and legal wrangling, adding to their difficult day jobs.

“Lawsuits affect every single member of the nursing team,” said Kimberly Biegasiewicz, the Chief Nursing Officer for the long-term care firm Avante Group at a recent House committee meeting. “Unnecessary lawsuits put doubt in their mind that they have not given it their all.”

Union advocates argue, however, that the liability bills are not meant to protect workers. Rather, they exist to protect the bottom lines of health care conglomerates.

Roxey Nelson, the vice president of politics and strategic campaigns at 1199 SEIU United Healthcare Workers East, noted that the long-term care industry sees significant employee turnover because of the low wages offered to front line workers. (Employees bouncing from nursing home to nursing home may have exacerbated the the spread of the disease within facilities, researchers have noted.)

“The industry used COVID to say that they were having a hard time getting (certified nursing assistants) to stay at the bedside,” Nelson said. “At the end of the day, you’re not going to get (certified nursing assistants) to stay at the bedside for $11 per hour.”

Con: This shouldn’t be a top COVID-19 priority

Supporters of the liability legislation note that Florida would hardly be the first state to enact these protections. Nearly three dozen states and the District of Columbia have enacted COVID-19 liability protections for businesses.

Those who support the law, including Gov. Ron DeSantis, point out that compared to many other states, Florida’s health care system fared well during the pandemic. Despite Florida’s large elderly population, the state’s per capita death rate ranks only 26th out of the 50 states.

Detractors of the legislation argue that Florida has little to celebrate. After a year of trauma which claimed so many lives in long-term care — more than 10,500 so far — the state has its priorities out of whack, they say. Rather than focus on systemic problems, they say, the state is protecting well-heeled health care interests. And they’re doing so with COVID-19 legislation.

“The disappointment coming out of the last year is that rather than focusing on how to address this, we’re looking for ways to forget about it, sweep it under the rug,” Johnson of the AARP said.