The coronavirus has claimed more than 2,000 lives in Florida and it’s targeting our most vulnerable population. Of the Floridians who have died, 85% were seniors and 40% were residents and staffers at nursing homes. Such a high toll raises serious questions about how to protect patients from this unprecedented contagion, while also protecting medical staff from the heightened liability they face. That’s why the medical community is asking states to grant blanket immunity to front line workers for all COVID-related cases.
States like New York, Michigan, Illinois, and Massachusetts have already enacted such measures. They argue COVID-19 is not a normal virus, which has forced hospitals to rapidly shift based on changing guidance from the CDC, federal, state and local directives. This process is necessary, but raises concerns about liability at a time where physicians are doing their best to provide quality care. Now lobbyists in Florida are hoping Governor Ron DeSantis will provide immunity for its nursing homes, hospitals and businesses as well.
From our perspective at KL, it’s clear doctors, nurses and hospitals deserve protection. But blanket immunity also means victims of medical malpractice may never get a day in court. Here we explore the impossible debate over COVID-19 liability protection:
The Healthcare Liability Debate at the Federal Level
Several states have already enacted blanket immunity for healthcare workers. On a federal level, the Secretary of Health and Human Services issued a letter urging all state governors to shield healthcare professionals from medical liability. Taking COVID protection a step further, Senate Majority Leader Mitch McConnel has lobbied congress to extend legal protection to all companies. Sen. Jeff Brandes of the Florida’s Legislature agrees. Brandes supports qualified immunity for every business type–not just in healthcare.
Some hospitals say the legal uncertainty is making them wary to resume non-lifesaving surgical procedures, as well as care for heart conditions and cancer. The two-month halt on these procedures, which are lucrative revenue sources for hospitals, were meant to to mitigate the risk of spreading infection and prevent hospitals from being overrun. The halt also hurt the healthcare industry financially while delaying needed care for some patients.
McConnell and House Minority Leader Kevin McCarthy have called legal protections for employers across all industries “absolutely essential”, arguing that excessive lawsuits could not just effective healthcare facilities and workers but blunt efforts for businesses nationwide to reopen.
“We simply cannot allow a flood of frivolous lawsuits to harm our incredible health care workers or stunt our economic recovery,” said Sen. John Cornyn (R-Texas).
Senator Richard Blumental (D-Conn) contends that sweeping immunity protections would free healthcare providers from accountability and make it difficult for people to receive compensation when there’s demonstrable harm.
Where Florida Stands on Blanket Immunity
Despite the growing political consensus, Governor Ron DeSantis has not decided whether or not blanket immunity is right for Florida’s healthcare industry. In fact in late March, Gov. DeSantis harshly criticized a Broward assisted living facility when he indicated their questionable screening methods could be criminal. But just a couple weeks after that, the Florida Health Care Association wrote the governor requesting immunity for all healthcare facilities from any liability, civil or criminal in the course of treating COVID-19 patients. DeSantis is still considering the proposal.
|If enacted, here’s what blanket immunity means for both sides:|
|Healthcare companies and front line workers will have protection from liability when acting in good faith|
|Victims can’t sue hospitals or nursing homes for “acts or omissions” committed in connection with COVID-19|
|Victims can still sue for willful misconduct or gross negligence, reckless misconduct or intentional misconduct|
Now it’s up to the Governor to consider the arguments and decide if blanket immunity is right for Florida.
The Legal Argument Against Blanket Immunity
Patients, plaintiff attorneys, journalists and citizens alike are largely against blanket immunity. In fact, a national poll by Hart Research found the majority of republicans and democrats oppose it. They argue blanket immunity strips victims of their right to legal recourse, and could lead hospitals to ignore CDC protocols without risk of consequence. If this passes, opponents argue it sets the bar impossibly high for those who seek justice. Moreover they say blanket immunity serves to protect negligent healthcare companies from justice, while masquerading as a crusade to protect front line workers. According to a Sun Sentinel article, error resulting from a staffing or resource shortage would not constitute gross negligence. In other words, a nursing home or hospital would not be liable for failing to provide enough masks or protective equipment to its staff or patients.
We can make a sound argument that healthcare providers have received expanded liability protections and those changes have chipped away rights for patients with legitimate complaints. According to The National Practioner Data Bank, the number of medical malpractice reports has decreased from 14,017 to 11,429 – an 18.5% decrease from 2009-2018.
Blanket Immunity opponents point to cases where loved ones died as a result of alleged rampant misconduct. Just recently, a law firm announced plans to sue a rehabilitation center in Ormond Beach for allegedly ignoring early cases and not properly isolating those who were infected leading to rampant infections and deaths. While early this month, a federal audit of 20 nursing homes, reported by the Tampa Bay Times, found widespread safety failures in 19 of them. It’s entirely possible these facilities are innocent of wrongdoing, but opponents of blanket immunity argue that plaintiffs deserve to take these facilities to court. And if Gov. DeSantis signs the bill, victims and their families may never get a day in court.
At KL Injury Attorneys, we agree the concept of blanket immunity is not aligned with the American justice systems core values. It basically sets a high bar that often makes it difficult to hold businesses or individuals accountable for negligence. At the same time, we’re sensitive to the difficult situation that doctors and nurses face when treating COVID-19 patients. Let’s review the other side of this debate.
The Legal Argument For Blanket Immunity
Hospitals, lobbyists and insurance companies argue that blanket immunity protects front line heroes who need it the most. These people are in the trenches, risking their lives to save others from a deadly virus often without effective protective gear to ensure their own safety. At least with blanket immunity, these good-faith physicians and nurses can treat patients without fear of getting sued for making an honest mistake.
These groups argue that blanket immunity does not strip away victims’ rights, because it still allows for lawsuits involving gross negligence. Thus, blanket immunity is not meant to protect every practitioner in every scenario. It’s only meant to protect those who are acting in good faith to follow the rapid pace of changing CDC guidelines with the resources they have available. Unfortunately many are forced to tackle this unprecedented virus without proper masks, tests, or ventilators. But they are doing their best.
Coronavirus is so dangerous because asymptomatic carriers, including facility staff, nurses, and nursing home contractors can unknowingly transit the virus to patients in the facility. To prevent or limit the spread, these facilities need to know who is infected. But they can only know if they can continually test everyone on site. And they simply don’t have the resources. According to a recent Miami Herald article a National Guard strike team set out to conduct testing at nursing homes but have only focused on the sites where the virus is known. Thus far only a fraction of facilities have been tested and nursing home administrators have lamented week-long delays to get the results. In these cases, immunity proponents argue the nursing homes and personnel should not be held liable.
No Easy Answer on Legal Recourse
At KL, we believe every American has the right to seek legal recourse for injustice. We also recognize negligent medical and long-term care facilities like nursing homes might get away with what may be considered criminal behavior that forces plaintiffs to bear the burden of proving gross negligence. At the same time, we understand hospitals, nursing homes, and their staff are fighting a highly contagious virus without access to resources they need. And we believe the vast majority are doing their absolute best to save lives despite the obstacles. Regardless of what Gov. DeSantis chooses, there are no clear winners in the blanket immunity debate.