Health care Professionals continue to put their lives at risk amid the battle against the COVID-19 pandemic. While many states, such as New York, have temporarily implemented safeguards shielding doctors from civil liability for medical malpractice suits related to COVID-19 treatment, Florida has not followed suit. As of today, Florida laws remain unchanged, leaving doctors open to an influx in COVID-19 related lawsuits.

On April 4, 2020, New York Governor Andrew Cuomo signed The Emergency Disaster Treatment Protection Act. The Act protects doctors and health care facilities and medical professionals, including volunteers from medical malpractice and negligence claims arising out of treatment of the COVID-19 emergency.

For immunity to apply under this act the following conditions must be met:

1. the facility or professional arranged for or provided health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law;

2. the act or omission at issue occurred in the course of arranging for or providing health care services and the treatment of the individual was impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of New York State’s directives; and

3. the health care facility or health care professional arranged for or provided health care services in good faith.

The Act does not immunize against liability for harm or damages caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct or intentional infliction of harm. This immunity expires when Governor Cuomo lifts the New York state of emergency.

Lobbyists in Florida continue to push Governor Ron DeSantis to take a similar approach. On April 3, the FHCA sent a letter to Governor DeSantis to push him to offer sovereign immunity to all health care professionals and health care facilities engaged in responding to the COVID-19 outbreak.

The plaintiff’s bar however has raised stiff opposition to such a proposal. They argue that such immunity is unfair to patients that are victimized by negligent doctors. Furthermore, they claim that Florida already provides adequate procedural safeguards for healthcare providers treating emergency patients. I’m

The defense bar distress. They argue that the safeguards in place are not sufficient to protect Florida doctors treating COVID-19 emergency patients. Florida law states that a doctor treating a patient in an emergency setting can still be held liable for medical malpractice if their conduct breaches the standard of care by a “clear and convincing” threshold. While this is a higher burden of proof than the standard “preponderance of the evidence” standard, it is only slightly more difficult to prove to a jury. The slightly higher bar will not prevent plaintiff attorneys from pursuing most claims. And the result will be an onslaught of cases filed against the very same doctors that are putting their lives at risk to save countless lives during this pandemic.

DeSantis has remained silent on this issue since his response on April 3 stating: “I think it’s under review.” “I haven’t made any decisions yet and we’ll look.”

Unlike the uncertainty associated with the novel coronavirus, an increase in the number of medical malpractice lawsuits, at least here in Florida, is certain. Healthcare Providers and workers must be ready to face and defend actions for civil and criminal liabilities associated with COVID-19.

Written By Steven Lubell and Amber Ruocco, Esquire, Lubell | Rosen, 200 S. Andrews, Suite 900, Ft. Lauderdale, FL 33301| 954.880.9500