All of us can easily recall the sight of healthcare workers braving the threat of the pandemic to care for the sick and dying. As a country, we were all cheering for our healthcare workers and thankful for their dedication to their professions. At the same time, many state legislatures were busy passing laws that they knew would likely garner public support.
The Florida legislature, with a Republican majority, was no exception to this desire for attention. When politicians want attention, they think of laws that they can champion that will let them share in the spotlight that is rightfully focused on the healthcare industry.
Civil Immunity From COVID-Related Lawsuits
Florida Republicans decided to pass a COVID-19 medical malpractice law that basically insulated healthcare workers from being sued for malpractice if the matter was related to a COVID-19 diagnosis or treatment. The Florida legislature did in fact pass Florida Statute Section 768.38 Liability Protections for COVID-19 Related Claims.
Complexity And Expense Of A Medical Malpractice Lawsuit
First of all, as Zarzaur Law pointed out in several videos during the height of the virus in 2020, medical malpractice lawsuits are already incredibly expensive and difficult to prosecute and win in Florida, even in the absence of this new COVID-19 statute. As we have discussed in many blogs and vlogs before, medical malpractice statutes in Florida make the pursuit of any medical malpractice case expensive and time-consuming.
Generally, the pursuit of a medical malpractice case will cost approximately $100,000.00–$300,000.00 in out-of-pocket expenses to prosecute. No law firm or lawyer in their right mind would ever decide to spend this amount of money on a case that they did not feel they had a better than average chance of winning.
This is why most every medical malpractice case generally requires that the injury be catastrophic or result in death before law firms can even consider handling the case. This is true even in the most egregious cases of medical recklessness.
Liability And The Jury
Obviously, before any health care provider is found liable for negligence, a jury would have to conclude that they were negligent. No jury, we would contend, would find any healthcare worker caring for COVID patients during the pandemic liable for anything short of intentional murder. No jury would ever conclude that a medical provider was negligent for giving care in the midst of the pandemic. For this reason, we feel that passing laws that make it harder is really a solution in search of a problem.
Non-COVID Patients And The Pandemic
However unnecessary we may think it is, Florida now has a statute that makes it nearly impossible to sue a healthcare provider for COVID-related issues. Setting aside all potential medical negligence cases that are related to COVID diagnosis or treatment, the COVID statute also protects healthcare providers rendering NON-COVID care if their negligence was directly related to the COVID pandemic.
So, this allows healthcare providers to argue that non-COVID patient negligence was related to the COVID pandemic, and if so, the healthcare worker will be able to use the statute to shield himself/herself/itself from liability.
Practically, this is how that may play out. A cardiac patient is not cared for properly and dies while an inpatient at the hospital. The hospital could attempt and argue that due to the COVID-19 pandemic, it wasn’t able to provide the amount of care that it would otherwise have provided. This argument could be used to try and use this statute as protection from responsibility.
The section of the statute dealing with these indirect issues reads as follows: “An act of omission with respect to an emergency medical condition… and which act or omission was the result of a lack of resources directly caused by the COVID-19 pandemic;” § 738.38(d)(5) Florida Statutes.
The challenge for the healthcare provider would be to show that the misfeasance was “directly related” to the COVID-19 pandemic. This causation element would likely involve fact issues that would need to be determined by the fact-finder in a case, but if found to exist, would allow healthcare workers to avoid liability for negligence associated with non-COVID patients.
This is obviously a dangerous and expansive argument, but it very well could be used by defendants to try and escape liability for culpable conduct. If you or a loved one is the victim of medical malpractice and you desire to have a FREE CONSULTATION with a firm that has a medical doctor on full-time staff, please feel free to reach out to our firm at zarzaurlaw.com or call us at 855Hirejoe.
Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.
It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.