In an April 3, 2020 letter, Florida's largest advocacy group for long-term care providers, Florida Health Care Association, asked Florida Governor Ron DeSantis to extend sovereign immunity to heath care providers and health care facilities engaged in and responding to the COVID-19 outbreak. The letter requests liability immunity (both criminal and civil) for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services in accordance with COVID-19's emergency rule and state directives. Additionally, the letter requests immunity for the health care facility or health care professional if they are arranging for, or providing health care services, in good faith.
"Health care facilities" has been defined to include skilled nursing facilities, nursing homes, hospitals, or other facilities licensed or authorized to provide health care services under Florida code. Additionally, this term is to include "any site providing health care services established for the purposes of responding to the COVID-19 outbreak pursuant to any existing or future federal or state orders, declarations or waivers."
While federal tort liability immunity for the administration of covered countermeasures in response to COVID-19 already exists through the federally enacted Public Readiness and Emergency Preparedness Act ("PREP Act"), the Florida Health Care Association is seeking additional liability immunity protections on a state level. The PREP Act provides immunity from tort liability claims (except willful misconduct) to individuals or organizations involved in the manufacture, distribution, dispensing, or administration of medical countermeasures against COVID-19, such as health care professionals. The PREP Act does not cover criminal claims or civil claims based on a failure to administer a countermeasure1. This proposed additional immunity from the Florida Health Care Association seeks protection "from any liability, civil or criminal for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services".
Per the proposal letter, the requested immunity would not apply to damages that were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm by the heath care facility or professional providing health care services. However, the letter requests that acts, omissions, or decisions resulting from a resource or staffing shortage, a violation commonly alleged in lawsuits against nursing homes, should not be considered willful or intentional misconduct, gross negligence, reckless misconduct, or intentional infliction of harm. The State of Florida has the highest percentage of people over 65 years old in the country2 with 691 licensed nursing homes representing approximately 84,448 beds where the estimated number of residents is approximately 71,000 at any given time3.
According to reports, Governor DeSantis is considering the proposal and whether such an immunity can be provided. While Governor DeSantis has not formally responded to the letter, earlier this week the Secretary of the Florida Agency for Health Care Administration said that the Governor has "laser-beam focus" on protecting the elderly. At this time, it is unclear what action, if any, the Governor will take on this issue.
This appears to be one of the first such requests in the country, although there are likely to be other requests as the first wrongful death lawsuit against a nursing home has been filed in Washington State. Last Friday the daughter of a nursing home resident at The Life Care Center of Kirkland in Washington filed a wrongful death action against the home for the death of her mother due to inadequate infection control procedures. The Life Care Center of Kirkland is believed by U.S. authorities to be the site of the first outbreak in a long-term care facility in the country.
Footnotes
1. Casabianca v. Mount Sinai Med. Ctr., Inc., 2014 N.Y. Misc. LEXIS 5998, *5, *13 (NY Dec. 2, 2014)
2. https://www.census.gov/population/socdemo/statbriefs/agebrief.html
3. https://www.fhca.org/media_center/long_term_health_care_facts
Originally published 16 April, 2020
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