In an effort to diminish or even prevent COVID-19-related frivolous lawsuits against businesses and other essential establishments throughout Florida, the legislature is fast-tracking measures to do what they know best: limit lawsuits. These lawmakers have called for and lead the issuance of a Bill (HB 7) establishing new barriers to lawsuits related to COVID-19. While this Bill does not exempt businesses from COVID-19 litigation altogether, it is intended to put Florida businesses at ease and to provide clarity as to the good faith effort required in order to avoid comply with legal obligations.
The issue is not whether coronavirus litigation will be ultimately successful—the prevailing view is that they will almost all fail to establish causation except in cases of such evident gross negligence that borders on intentionally exposing employees to the virus. The legislature and businesses are concerned about having to defend against these types of lawsuits which will force settlements in many cases due to the costs of litigating until a court can dispose of the case due to lack of causation or causal connection.
Consequently, the legislature has proposed heightened pleading requirements for plaintiffs and other protections. Specifically, in filing a civil action based on COVID-19 related claims, the plaintiff must: (1) plead the allegations with particularity (instead of merely a short and plain statement of the ultimate facts showing that the pleader is entitled to relief); and (2) submit a signed affidavit from a doctor who can attest that “within a reasonable degree of medical certainty, that the plaintiff’s COVID-19 related damages, injury, or death occurred as a result of the defendant’s acts or omissions.” If the plaintiffs can overcome both of those barriers, then the defendant can defeat the lawsuit by submitting evidence that it made a good faith effort to substantially comply with the authoritative or controlling guidance set forth at the time of the cause of action. This guidance can come from authorities such as the CDC, WHO, or local or state governments. The standard of Proof for healthcare provide slightly differs from that of other business entities. In those cases, the plaintiff who brings an action against a health care provider, for a COVID-19 related claim, must “prove by greater weight of the evidence that the health care provider was grossly negligent or engaged in intentional misconduct. Similar to other business entities, a health care provider simply needs to show that it was substantially complaint and relied upon government-issued health standard specific to COVID-19 and/or infectious diseases in order to completely defeat the lawsuit.
The full text of the Bill can be found at https://www.flsenate.gov/Session/Bill/2021/7/BillText/c1/PDF. In light of the nearly 200 coronavirus-related lawsuits filed in 2020, it is not surprising that the Florida Legislature found that “that it is an overpowering public necessity to enact legislation that will deter unfounded lawsuits … based on COVID-19 related claims” against business entities, educational institutions, governmental entities, health care providers and religious institutions so that Floridians can ultimately return to the quality of life they enjoyed before the COVID-19 outbreak; and, that they be allowed to earn a living and support their families without unreasonable government intrusion.
Compliance and planning is the key factor protecting business from frivolous lawsuits.By clarifying that businesses need to make a good faith effort to comply with guidance by healthcare and governmental authorities, the Legislature has made it clear that businesses do not need to engage in exhaustive, endless measures that are impossible to enforce and maintain.There is a lot of guidance available on the internet and by contacting OSHA, the CDC, EEOC, WHO, the Florida Department of Health, and many other sources.If you still have doubts about COVID-19 liability in the workplace or would like to discuss any matter related to your business in the midst of the pandemic, do not hesitate to contact us at office@vadamlaw.com or by phone (954) 451-0792.