By Nathan Hale

Law360 (February 3, 2021, 9:11 PM EST) -- A proposed COVID-19 liability shield for businesses advanced to its final committee in the Florida House of Representatives on Wednesday, while the state Senate introduced a bill aimed at providing similar legal protections for health care providers.

H.B. 7, which would raise the bar for personal injury and wrongful death lawsuits stemming from COVID-19 and provide immunity for businesses and certain other entities who made "good faith" prevention efforts, was reported favorably by the House Pandemics and Public Emergencies Committee.

As in previous stops for the bill and the identical Senate Bill 72, the committee's 11-6 vote fell along party lines. Democratic members said they are open to potentially supporting the bill down the road but voiced concerns that the current features and language will effectively bar claimants from the courthouse and produce a blanket immunity.

Critics also questioned the Legislature's priorities, expressing dismay that its first big effort at COVID-19 relief has focused on corporate immunity rather than help for workers or more direct financial aid to small businesses.

"I think that everybody's trying to do the right thing, but I think we're just missing the point from a working person's perspective," Richard Templin of the AFL-CIO told the panel.

Much of the focus in Wednesday's debate was on the bill's requirement that any lawsuit that brings a COVID-19-related claim for damages, injury or death must be accompanied by an affidavit signed by an active physician attesting that "within a reasonable degree of medical certainty, the alleged injuries or damages were the result of the defendant's acts or omissions."

While supporters suggested the provision is similar to a presuit requirement already in place for medical malpractice suits in the state, Democratic members and other critics said it is more of an "apples-to-oranges comparison."

Rep. Carlos Smith, D-Orlando, questioned the need for this extra step, noting that lawmakers added the requirement in the medical malpractice field because frivolous lawsuits had made it difficult for doctors to obtain insurance and drove up patients' costs, but here the only claim is "fear and anxiety, not lawsuit after lawsuit."

Unlike in medical malpractice cases, H.B. 7 also appears to call for doctors to attest to nonmedical findings and apparently with no facts or investigation beyond the plaintiff's account, Smith added.

Rep. Geraldine Thompson, D-Windermere, said she is worried that if a claimant cannot find a doctor willing to sign such an affidavit, their constitutional right to access to the courts could be infringed.

Despite the variety of concerns, the committee rejected an amendment proposed by Rep. Frentice Driskell, D-Tampa, that would have allowed plaintiffs to get an affidavit from any Florida-licensed medical professional qualified to testify on their COVID-19 status, instead of just a physician, and narrowed the scope of the affidavits to medical findings on whether the plaintiff's injuries arose from COVID-19 and if they had it at the time of the alleged transmission.

Explaining the purpose of the affidavit requirement, bill sponsor Rep. Lawrence McClure, R-Dover, said, "I want there to be some weight on the front side of this."

But while he said he is "anchored to the thesis" of the bill, McClure repeatedly said he was open to working with his fellow lawmakers and other stakeholders on the affidavit portion.

McClure also said he is not 100% wedded to any of the language in the bill in the face of criticism that it does not clearly define key terms, such as the "good faith" efforts businesses must undertake to qualify for immunity or with what guidelines they must have tried to comply.

However, when ranking member Joe Casello, D-Boynton Beach, questioned requirements for plaintiffs to prove gross negligence by "clear and convincing evidence," McClure said, "I won't run from that. We want higher standards."

In addition to the affidavit requirement, H.B. 7 mandates that COVID-19-related complaints must be pled with particularity. The court must dismiss the complaint without prejudice if either of those requirements is not met, according to the bill.

The bill, which moves on to the House Judiciary Committee, also specifies that it is the plaintiff's burden to demonstrate a lack of good faith effort by the defendant to substantially comply with government-issued health standards or guidelines.

S.B. 74, filed Wednesday by Sen. Jeff Brandes, R-St. Petersburg, features some similar elements as it aims to provide similar legal protections for health care providers.

The Senate bill also requires COVID-19-related complaints against providers to be pled with particularity and provides a one-year limitation period to bring such claims from the later of either the date of death, hospitalization or original diagnosis due to COVID-19, according to an announcement.

The bill calls for a plaintiff to prove that a health care provider's conduct amounted to gross negligence or intentional misconduct.

The announcement also said that under the bill a health care provider has "strong liability protections when the provider substantially follows authoritative or applicable government-issued heath standards or guidance related to COVID-19" and is "entitled to strong liability protections when interpreting or applying the standards or guidance with respect to the provision of health care or related services, or lack thereof, or the allocation of scarce resources or assistance with daily living."

"In many cases, these health-care providers were required to make a judgment call with often times limited or conflicting guidance," Brandes, who is also the sponsor of S.B. 72, said in a statement. "In a situation like COVID-19, where nonurgent medical procedures were temporarily put on hold, every situation cannot be anticipated. We want our health care providers making the judgment that a procedure is either urgent or a non-emergency to be protected from unfair lawsuits for these decisions."

--Editing by Bruce Goldman.

Correction: A previous version of this story made reference to the wrong bill number in one instance.

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