Florida protected nursing homes from COVID lawsuits. Then cases began to spike.

Earlier this year, Florida passed a law that gave health care providers — including nursing homes and other long-term care facilities — sweeping protections from COVID-19-related lawsuits.

Intended to prevent a flood of litigation overwhelming the health care system, as well as other industries, SB 72 raised the bar for individuals seeking to sue senior care homes for virus-related damages, injuries or death.

The legislation, which Gov. Ron DeSantis signed into law in March, is again under the microscope as Florida has experienced an unprecedented surge in coronavirus cases in recent months and nursing homes faced outbreaks that may have previously opened up facilities to litigation.

By the end of August, Florida led the nation in new nursing home resident and staff deaths due to COVID-19, according to recent AARP analysis, accounting for 20 percent of all coronavirus deaths among residents nationwide.

Older adults living inside these facilities are especially vulnerable to severe illness from the virus. Over a third of Florida’s COVID-19 deaths overall have been among long-term care residents.

The state has one of the lowest nursing home staff vaccination rates in the country — trailing behind all other states except Louisiana — which critics said has placed nursing home residents at increased risk of infection.

“Despite the things that the state has done to try to protect elders, there are a lot of them in facilities who haven’t been protected and have passed away this summer,” said Jeff Johnson, state director of AARP Florida. “It’s all the more reason for the state to really reconsider whether it makes sense to provide liability protection to these facilities.”

Leaders in the nursing home business say these protections remain necessary to prevent the industry from collapsing under the weight of excessive lawsuits amid an unprecedented pandemic.

Law’s impact so far

The Florida Health Care Association, which represents 80 percent of the state’s nursing homes, said their members received about 90 notices of intent to sue prior to the law’s passage, according to Bill Edwards, a lawyer at Fudge Broadwater that advises the organization.

None of their members have reported any claims to the association since, he said.

Attorneys who pursue litigation against nursing homes said this isn’t due to a lack of demand.

“We have literally received hundreds of calls related to COVID since the law was passed,” said Stephen Cain, a Miami-based personal injury attorney at Stewart Tilghman Fox Bianchi & Cain. “And we’ve not taken them, time and time and time again.

“I do not know anybody who has brought a claim since the law’s being passed related directly to COVID-19,” he added. “They’re not happening.”

Kim Kohn, a lawyer who specializes in nursing home litigation and works at a smaller firm in Tampa Bay, said she has received about 10 inquiries from people seeking to pursue COVID-19-related litigation against a facility.

She has not taken on any as clients, including those who she believed had a valid claim of COVID-19-related negligence.

Steeper hurdles

Under the new law, families or residents seeking to sue a nursing home for a COVID-19-related injury or death must have evidence to prove that a specific individual intended to harm the person who contracted COVID-19 or showed conscious disregard for their life.

Though at least 18 other states have passed similar health care shield laws, Florida’s legislation includes a particularly steep requirement — plaintiffs must obtain a doctor’s statement, made under oath, attesting to their claim that the defendant’s action led to the person’s infection.

“Let’s say that CNA Mary has COVID and the nursing home knows it, but she isn’t showing symptoms of it so they let her come to work,” Kohn said. “Even then, unless you can definitively say, ‘The only person the resident had contact with was CNA Mary,’ it’s basically game over.

“The Legislature and the governor knew what they were doing when they signed this, and they purposely did this to protect nursing home companies,” she added.

The law also raised the burden of proof beyond the typical standard for a nursing home negligence case. A person seeking COVID-19 damages against a facility must prove the claim is substantially more likely to be true than untrue, rather than merely demonstrate a greater-than-50-percent chance that the allegations are true.

“Ultimately, this effectively prevents practitioners like me from pursuing all but the very most egregious cases,” said Cain, who also serves on the executive committee of the Florida Justice Association, which opposed the legislation. “And only in instances where you’re able to uncover the egregiousness before you file suit.”

Necessary or unreasonable?

Nursing home industry leaders said the law is necessary to prevent excessive lawsuits from being filed every time someone dies or is harmed by COVID-19 inside a facility.

“How can we expect the long-term care industry to survive if we expect it to battle COVID-19 and COVID-19 lawsuits at the same time?” Edwards said. “Even in pre-suits, these are expensive cases. Where are these residents going to go if these facilities shut down?”

He added that vaccines aren’t going to stop COVID-19 from entering facilities completely due to breakthrough cases and potential variants. Edwards said he is not aware of any current lawsuits filed involving residents or staff who have been vaccinated.

Critics argue the legislation unreasonably limits families’ access to the courts.

Several trial attorneys likened COVID-19-related claims to nursing home negligence cases involving the fall of a resident — not all falls are preventable, they said, but some are. Most negligence is not malicious, they said, but a facility’s oversight can still cause harm.

“Every facility is likely going to have at least several cases of COVID at some point, in fairness,” Kohn said. “But some have done a great job of limiting it, and some not so much — if you see a large number of residents and staff members with COVID in a single facility during a certain time period, I think there have to be some infection control problems going on.”

At least seven families have filed lawsuits against the owners of Freedom Square of Seminole, a sprawling retirement community that was the subject of a Tampa Bay Times investigation last year after coronavirus spread through its 15-acre complex, killing 40 people.

Only one was filed after Florida’s COVID-19 liability shield law went into effect.

On July 23, a wrongful death complaint was submitted on behalf of the estate of Alice Ford, 90, who contracted the virus while a resident at the Freedom Square. Her death was determined to be related to COVID-19, according to a medical examiner investigation.

Lydia Wardell, the attorney representing Ford’s estate, declined to comment on any specific case, though she noted the Freedom Square suit was in very early stages. Generally, she said she is not pursuing claims solely due to COVID-19 — but oftentimes when a resident becomes infected with the virus, there are other forms of neglect at play for which she can pursue damages.

“If someone falls and hits their head, and then that person catches COVID in the hospital and dies, that’s not going to keep me from suing,” Wardell said. “I don’t want to say that there’s always going to be something else because nursing homes are so awful — I want to be diplomatic — but my practice has not changed as a result of this statute.”

Whether the law will be used to challenge the Ford case remains to be seen.

Looking ahead

Senior care industry leaders have already begun to advocate for extending the bill, which is set to expire in March 2022.

“While we cannot comment on any lawsuits, we know that the pressures and challenges presented by the COVID-19 pandemic for our members have not waned over the last year,” said Nick Van Der Linden, director of communications at LeadingAge Florida, an industry group representing about 500 long-term care facilities, in an emailed statement.

“To that extent, frivolous lawsuits don’t improve care,” he added. “They simply malign the tireless work of those who care for Florida’s most vulnerable and drain already scarce resources in the process…We hope those protections continue until the threat of COVID-19 has truly subsided.”

DeSantis’s office declined to comment on whether he would sign a bill to extend the law should one be brought forward by the Legislature.

Have you attempted to pursue COVID-19-related litigation against a long-term care facility in Florida after March 2021? We want to hear from you. Email the reporter at hcritchfield@tampabay.com.