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The Florida Statutes

The 2021 Florida Statutes

Title XLV
TORTS
Chapter 768
NEGLIGENCE
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F.S. 768.381
1768.381 COVID-19-related claims against health care providers.
(1) DEFINITIONS.As used in this section, the term:
(a) “Authoritative guidance” means nonbinding instructions or recommendations from a federal, state, or local governmental entity, a clinical professional organization, or another authoritative source of clinical guidance.
(b) “COVID-19” means the novel coronavirus identified as SARS-zc-2; any disease caused by SARS-CoV-2, its viral fragments, or a virus mutating therefrom; and all conditions associated with the disease which are caused by SARS-CoV-2, its viral fragments, or a virus mutating therefrom.
(c) “COVID-19 emergency” means a public health emergency relating to COVID-19 which is declared by an emergency declaration of the Federal Government or an emergency order of the State Surgeon General or a state of emergency due to COVID-19 declared by executive order of the Governor.
(d) “COVID-19-related claim” means a civil liability claim against a health care provider which arises from:
1. The diagnosis or treatment of, or failure to diagnose or treat, a person for COVID-19;
2. The provision of a novel or experimental COVID-19 treatment;
3. The transmission of COVID-19;
4. The delay or cancellation of a surgery or a delay or cancellation of a medical procedure, a test, or an appointment based on a health care provider’s interpretation or application of government-issued health standards or authoritative guidance specifically relating to the COVID-19 emergency;
5. An act or omission with respect to an emergency medical condition as defined in s. 395.002, and which act or omission was the result of a lack of resources directly caused by the COVID-19 pandemic; or
6. The provision of treatment to a patient diagnosed with COVID-19 whose injuries were directly related to an exacerbation of the patient’s preexisting conditions by COVID-19.

The term does not include a claim alleging that an act or omission by a health care provider caused a person to contract COVID-19 or a derivative claim to such claim unless the person was a resident or patient of the health care provider or a person seeking care or treatment from the health care provider.

(e) “Government-issued health standards” means federal, state, or local laws, rules, regulations, or orders that describe the manner in which a health care provider must operate.
(f) “Health care provider” means any of the following:
1. A provider as defined in s. 408.803.
2. A clinical laboratory providing services in this state or services to health care providers in this state, if the clinical laboratory is certified by the Centers for Medicare and Medicaid Services under the federal Clinical Laboratory Improvement Amendments and the federal rules adopted thereunder.
3. A federally qualified health center as defined in 42 U.S.C. s. 1396d(l)(2)(B), as that definition existed on 2the effective date of this act.
4. Any site providing health care services which was established for the purpose of responding to the COVID-19 pandemic pursuant to any federal or state order, declaration, or waiver.
5. A health care practitioner as defined in s. 456.001.
6. A health care professional licensed under part IV of chapter 468.
7. A home health aide as defined in s. 400.462(15).
8. A provider licensed under chapter 394 or chapter 397 and its clinical and nonclinical staff providing inpatient or outpatient services.
9. A continuing care facility licensed under chapter 651.
10. A pharmacy permitted under chapter 465.
(2) PRELIMINARY PROCEDURES.
(a) In any civil action against a health care provider based on a COVID-19-related claim, the complaint must be pled with particularity by alleging facts in sufficient detail to support each element of the claim. An affidavit of a physician is not required as part of the pleading.
(b) If the complaint is not pled with particularity, the court must dismiss the action.
(3) STANDARD OF PROOF.A plaintiff who brings an action for a COVID-19-related claim against a health care provider must prove by the greater weight of the evidence that the health care provider was grossly negligent or engaged in intentional misconduct.
(4) AFFIRMATIVE DEFENSES.If a health care provider proves by the greater weight of the evidence the existence of an affirmative defense that applies to a specific COVID-19-related claim, the health care provider has no liability for that claim. The affirmative defenses that may apply to a COVID-19-related claim against a health care provider include, in addition to any other affirmative defenses recognized by law, the health care provider’s:
(a) Substantial compliance with government-issued health standards specifically relating to COVID-19 or other relevant standards, including standards relating to the preservation or prioritization of supplies, materials, or equipment;
(b) Substantial compliance with government-issued health standards specific to infectious diseases in the absence of standards specifically applicable to COVID-19;
(c) Substantial compliance with government-issued health standards relating to COVID-19 or other relevant standards was not possible due to the widespread shortages of necessary supplies, materials, equipment, or personnel;
(d) Substantial compliance with any applicable government-issued health standards relating to COVID-19 or other relevant standards if the applicable standards were in conflict; or
(e) Substantial compliance with government-issued health standards relating to COVID-19 or other relevant standards was not possible because there was insufficient time to implement the standards.
(5) LIMITATIONS PERIOD.
(a) An action for a COVID-19-related claim against a health care provider which arises out of the transmission, diagnosis, or treatment of COVID-19 must commence within 1 year after the later of the date of death due to COVID-19, hospitalization related to COVID-19, or the first diagnosis of COVID-19 which forms the basis of the action.
(b) An action for a COVID-19-related claim against a health care provider which does not arise out of the transmission, diagnosis, or treatment of COVID-19, such as a claim arising out of a delayed or canceled procedure, must commence within 1 year after the cause of action accrues.
(c) Notwithstanding paragraph (a) or paragraph (b), an action for a COVID-19-related claim that accrued before 2the effective date of this act must commence within 1 year after 2the effective date of this act.
(6) APPLICATION PERIOD.This section applies to claims that have accrued before 2the effective date of this act and within 1 year after 2the effective date of this act.
(7) INTERACTION WITH OTHER LAWS.
(a) This section does not create a new cause of action but instead applies in addition to any other applicable provisions of law, including, but not limited to, chapters 400, 429, 766, and this chapter. This section controls over any conflicting provision of law, but only to the extent of the conflict.
(b) This section does not apply to claims governed by chapter 440.
History.s. 2, ch. 2021-1.
1Note.Section 4, ch. 2021-1, provides that “[t]his act applies retroactively and prospectively. However, this act does not apply in a civil action against a particular named defendant which is commenced before [March 29, 2021].”
2Note.The effective date of ch. 2021-1 is March 29, 2021.