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The Impact Of Florida’s COVID-19 Business Liability Protection On Nursing Home Negligence Cases

Philip Freidin

The Florida Legislature recently changed longstanding liability law to make it more difficult to sue nursing homes for their negligence in exposing patients to COVID-19. As this is written, many thousands of nursing home patients have died from COVID-19. The number of infected residents who survived is surely much higher.

The idea behind the new law, so they said, was to create a more “business friendly” environment during these tough times. Although the bill applies to all COVID-19 related tort claims, it will nonetheless have a much more direct impact on nursing home claims for damages, injury or death against a nursing home.

Florida has a great, though short, history of protecting nursing home residents, beginning with the adoption of Florida Statute, Chapter 400.022, commonly known as the Residents’ Rights Act, in 1980. What’s ironic is that permitting Nursing Homes to be less accountable for their negligence will not be good for business. The truth is just the opposite. The better the care in preventing the spread of COVID-19 anywhere, the better it will be for all business.

While the new law applies to hospitals as well as nursing homes, hospitals have been generally careful with regard to keeping COVID-19 from spreading. They have risen to the occasion by adopting strong safety measures, such as not allowing unnecessary visitors, insisting on proper masks, taking temperatures on arrival, and enforcing social distancing.

We wish we could say the same for nursing homes. As of April 23, 2021, Florida data shows 11,099 of COVID-19 deaths linked to nursing homes residents [1].  That’s about one third of all COVID deaths in Florida.

With all that in mind let’s examine the main provisions of the new law.

  • The new law requires proof of “gross negligence” to prevail. That is a step up from what was previously required, i.e. “ordinary negligence.”
  • Another new requirement is that claims must now be supported by an expert affidavit before filing.
  • A third gives nursing homes a complete defense if they made a good faith attempt to substantially comply with authoritative or controlling government-issued health standards or guidance, such as i.e. the CDC guidelines.
  • Fourth, the statute of limitations in lawsuits against nursing homes related to COVID-19 was decreased from two years to one year.

These changes, while raising the bar on such claims, will not change what we do at Freidin Brown in considering whether to take such a nursing home claim. Here’s why:

  • We have always insisted that our nursing home claims were the result of gross negligence.
  • We have always sought an expert opinion before filing such claims
  • We would not pursue a claim against a nursing home that complied with CDC Guidelines
  • While we file our claims quickly- well within one year- the problem with this new section is it will penalize families and residents for waiting too long to consult with an attorney regarding their potential claim.

What families need to know about nursing home claims is the following:

Most of them involve horrendous, repetitive, failures, abandonments, mistakes made over and over. Deep Pressure sores and ulcers are the result of lengthy failures to turn patients, to treat their wounds, failures to inspect for the beginnings of these horrid, but unnecessary sores; dehydration and malnourishment are common and take days to weeks to unfold, failures to thrive are often the result of chronic neglect, indifference, or abuse. Understaffing for financial gain is a big and frequent problem. Documentation is often seriously lacking. Families are kept in the dark until it is too late. Indifference and apathy abound.

Nursing homes should take care of the elderly in the same fashion and with same degree of care as we would expect children to be cared for. Anything less is inexcusable.

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