Florida leads the nation in the deaths of nursing home residents and staff due to COVID-19. And the state has one of the lowest rates of vaccination among nursing home staff in the country, according to the Tampa Bay Times.
Yet now, seniors who succumb to COVID because their residential facility failed to maintain safe protocols, will virtually be unable to sue for damages.
That’s the effect of the COVID-19 Shield Law, Florida Statute 768.38, said to among the toughest of its kind among the 33 or so states with similar laws.
The law covers not only nursing homes, but businesses, schools, government agencies, hospitals and religious facilities as well. Among other things:
To sue, you must have an affidavit from a licensed Florida physician swearing that the plaintiff’s COVID-19 resulted from the defendant’s acts or omissions;
Even then, the defendant will not be liable if the defendant made a “good faith effort to substantially comply with standards and guidelines at the time….”
The defendant will not be liable unless its actions constituted “gross negligence” proven by “clear and convincing evidence.”
There’s a 1 year Statute of Limitations, rather than the 4-year statute of limitations for negligence cases, and 2-year statute of limitations for medical malpractice.
The net effect is that the bar has been set so high, it is nearly impossible to prove a case. Lawyers won’t be bringing cases that they might otherwise have accepted. Posing the question: Do we really want to spare liability, and allow for lax standards, where the need for due care is greatest? And a new surge is on the rise?
