HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 7005 PCB HHS 21-01 Civil Liability for Covid-19-Related Claims Against
Certain Health Care Providers
SPONSOR(S): Judiciary Committee, Pandemics & Public Emergencies Committee and Health & Human
Services Committee, Burton
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Health & Human Services 17 Y, 3 N McElroy Calamas
Committee
1) Pandemics & Public Emergencies Committee 12 Y, 6 N, As CS Landry Dearden
2) Judiciary Committee 15 Y, 5 N, As CS Jones Kramer
SUMMARY ANALYSIS
As COVID-19 spread across the world, the country, and the state, information about the virus evolved at a
rapid pace. Official guidance came from multiple sources and sometimes changed on a daily basis. Health
care providers and long-term care facilities made decisions based on evolving information, often while also
experiencing an inadequate supply of personal protective equipment and COVID-19 related staffing shortages.
CS/CS/HB 7005 provides heightened civil liability protections to health care entities for negligence claims
brought by patients and residents related to:
Diagnosis or treatment of, or failure to diagnose or treat, a person for COVID-19;
Provision of a novel or experimental COVID-19 treatment;
Transmission of COVID-19;
Delay or cancellation of a surgery or medical procedure, test, or appointment in certain situations; or
An act or omission with respect to an emergency medical condition, which act or omission was due to a
lack of resources directly caused by the COVID-19 pandemic.
A plaintiff must prove by a preponderance of the evidence that a defendant was grossly negligent or committed
intentional misconduct to recover under these COVID-19-related medical claims. The bill provides enumerated
affirmative defenses for defendants in certain situations.
The bill also provides heightened liability protections for a negligence claim against a health care provider for
causing a person who is not a patient or resident to contract COVID-19 (such as a claim brought against a
health care provider by a visitor to the facility). A health care provider making a good faith effort to substantially
comply with applicable COVID-19 guidance is immune from these negligence claims. Additionally, to recover
under these claims, a plaintiff must:
Plead his or her complaint with particularity.
Submit, at the time of filing suit, a physician's affidavit confirming the physician's belief that the
plaintiff's COVID-19-related damages were due to the defendant's conduct.
Prove, by clear and convincing evidence, that the defendant was at least grossly negligent.
The bill has a severability clause and sunsets one year and one day after become law unless reenacted by the
Legislature. The bill also includes provisions clarifying how the bill's provisions interact with other laws.
The bill may have a positive fiscal impact on state courts. The bill provides that it is effective upon becoming a
law and applies retroactively. However, the bill's provisions do not apply in a civil action against a particular
defendant if the action is filed before the bill's effective date.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 3/11/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
COVID-19 Outbreak, Spread, & Aftermath1
Initial Outbreak
On December 31, 2019, the Chinese government confirmed that health officials were treating "dozens
of cases" of pneumonia of an "unknown cause." A few days later, researchers identified a new virus,
which later came to be known as the novel coronavirus, or "COVID-19." It was ultimately determined
that the virus had surfaced at a Chinese seafood and poultry market. On January 11, 2020, China
reported its first death from a COVID-19 infection.
On January 14, 2020, the World Health Organization ("WHO") reported that preliminary investigations
by Chinese authorities had found "no clear evidence of human-to-human transmission." But WHO also
stated that it was "certainly possible that there is limited human-to-human transmission," and that
further investigation was necessary.
Just a week later, on January 21, 2020, WHO modified its statement and said that it was very clear,
based on the latest information, that there was "at least some human-to-human transmission." On
January 22 and 23, 2020, WHO convened fifteen experts from around the world to determine if the
virus constituted a "public health emergency of international concern," but the experts were unable to
reach a consensus opinion. On January 30, 2020, the virus was labeled a public health emergency of
international concern; however, by February 4, 2020, ninety-nine percent of the confirmed COVID-19
cases were still in China. As the situation developed, WHO disseminated and updated COVID-19
guidance.
Outbreak & Response in the United States, Europe, and Other Countries2
Several other countries soon began confirming the spread of the virus to their own citizens. On January
21, 2020, the first case in the United States was confirmed after a man in Washington returned home
after having visited Wuhan. On January 30, 2020, WHO declared a global health emergency.
The next day, President Donald Trump suspended entry into the United States for certain foreign
nationals who had travelled to China within the previous two weeks. During the month of February, the
virus continued its spread to Europe, the Middle East, and Latin America. On February 29, 2020, the
United States confirmed what was then believed to be its first COVID-19 related death. President
Trump issued a "do not travel" warning for various parts of the world heavily affected by COVID-19. By
March 26, 2020, the United States had become the world's hardest-hit country at the time.
Evolving Guidance Regarding Social Distancing and the Use of Masks
As the virus spread across the world, the United States, and Florida, information about the virus
evolved at a rapid pace, with official guidance coming from multiple sources and sometimes changing
on a day-to-day basis. Everyone, including health care providers and long-term care facilities were
forced to make the best decisions possible based on their knowledge of the situation at the time.
On February 27, 2020, in the face of a mask shortage, WHO published guidance stating that "[f]or
asymptomatic individuals, wearing a mask of any type is not recommended."3 Two days later, WHO
1 World Health Organization, Listings of WHO's Response to COVID, https://www.who.int/news/item/29-06-2020-covidtimeline (last
visited March 3, 2021).
2 Id.
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published additional quarantine guidelines. On March 11, 2020, WHO classified the COVID-19
outbreak as a pandemic.
On March 13, 2020, President Trump declared a national emergency due to COVID-19. On March 15,
2020, the U.S. Center for Disease Control ("CDC") recommended that people should not gather in
groups of more than fifty. The next day, President Trump stated an even more cautious number,
recommending that people should not gather in groups of more than ten. During the months of March
and April, many states put "stay-at-home orders" into effect, requiring their citizens to quarantine,
shelter in place, or otherwise limit their normal interactions with others.
On March 23, 2020, WHO launched a joint campaign with the International Federation of Association
Football ("FIFA") to stop the spread of COVID-19. The campaign focused on five steps to stop the
spread, including:
Frequent handwashing;
Containing one's sneezes and coughs;
Avoiding touching one's face;
Socially distancing at a distance of one meter (equivalent to a little over three feet); and
Staying at home when not feeling well.4
Notably, the campaign letter did not include any guidance about wearing a face mask.5
On March 31, 2020, in response to a growing number of falsified medical products claiming to treat
COVID-19, WHO issued a medical product alert. On April 2, 2020, WHO reported that a person who
has not yet exhibited symptoms can spread COVID-19.
On April 6, 2020, WHO updated its guidance with respect to the use of face masks, cautioning that
"[m]edical masks should be reserved for health care workers" and that "the wide use of masks by
healthy people in the community setting is not supported by current evidence and carries uncertainties
and critical risks."6
About two months later, on June 5, 2020, WHO again updated its guidance for face masks. In this
guidance document, WHO acknowledged that a face mask may be used to protect a person when such
person is in contact with an infected individual. The guidance ultimately recommended that a person
exhibiting symptoms should wear a mask. The guidance deferred, however, on the question of whether
a healthy individual should wear a mask, citing a lack of good data and the fact that "there are potential
benefits and harms to consider."7
On August 5, 2020, WHO launched the "#WearAMask Challenge" on social media "to help spread the
word about how and when to use a mask to protect against COVID-19."8 On November 10, 2020, WHO
launched the "#WeAreInThisTogether" campaign to "promote collaboration and adherence to five key
measures to counter COVID-19: cleaning hands, wearing masks, coughing and sneezing safely,
keeping distant[,] and opening windows."9
3 World Health Organization, Rational Use of Personal Protective Equipment for Coronavirus Disease 2019 (COVID-19): Interim
Guidance (Feb. 27, 2020), https://apps.who.int/iris/bitstream/handle/10665/331215/WHO-2019-nCov-IPCPPE_use-2020.1-
eng.pdf?sequence=1&isAllowed=y.9 (last visited March 3, 2021).
4 World Health Organization, Pass the Message—Five Steps to Kicking Out Coronavirus (March 23, 2020) (emphasis supplied),
https://www.who.int/news/item/23-03-2020-pass-the-message-five-steps-to-kicking-out-coronavirus (last visited March 3, 2021).
5 See id.
6 World Health Organization, Advice on the Use of Masks in the Context of COVID-19, Interim Guidance (April. 6, 2020)
https://apps.who.int/iris/bitstream/handle/10665/331693/WHO-2019-nCov-IPC_Masks-2020.3-eng.pdf?sequence=1&isAllowed=y (last
visited March 3, 2021).
7 World Health Organization, Advice on the Use of Masks in the Context of COVID-19, Interim Guidance (June 5, 2020) (emphasis
supplied) (https://apps.who.int/iris/bitstream/handle/10665/332293/WHO-2019-nCov-IPC_Masks-2020.4-
eng.pdf?sequence=1&isAllowed=y (last visited March 3, 2021).
8 World Health Organization, Listings of WHO's Response to COVID, https://www.who.int/news/item/29-06-2020-covidtimeline (last
visited March 3, 2021).
9 Id.
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On December 1, 2020, WHO again updated its mask guidance, advising that wearing a mask is a good
idea and should be "a normal part of being around other people."10
Evolving Guidance for Health Care Providers and Long-term Care Facilities
Scientific knowledge of COVID-19 has grown exponentially over the last year, and continues to grow,
due to the novel nature of the disease. Guidance to health care providers and long-term care facilities
for treatment and infection prevention and control of this disease is also constantly changing11 as
understanding of the disease evolves.12 The lack of adequate supply of personal protective equipment
(PPE)13 and staffing shortages caused by the pandemic14 further worsened this situation and resulted in
the Federal Centers for Medicare and Medicaid Services issuing recommendations to postpone or
delay the performance of elective surgery and other non-essential health care procedures.15 Several
states, including Florida16, made this recommendation mandatory and prohibited health care providers
from providing these services for a period of time.
Outbreak & Response in Florida
For the COVID-19 outbreak in Florida, Governor Ron DeSantis declared a state of emergency and
issued a series of executive orders, including the following:
March 1, 2020:17 Directing the State Health Officer to declare a public health emergency
pursuant to the State Health Officer's authority under s. 381.00315, F.S.; and directing the
Department of Health to take action pursuant to its authority under ch. 381. Accordingly, the
State Health Officer immediately declared a public health emergency.18
March 9, 2020:19 Declaring a general state of emergency in Florida under ch. 252, F.S.
March 20, 2020:20 Prohibiting all hospitals, ambulatory surgical centers, office surgery centers,
dental, orthodontic and endodontic offices, and other health care practitioners' offices from
providing any medically unnecessary, non-urgent or non-emergency procedure or surgery.
March 23-24, 2020:21 Directing certain individuals travelling from out of state into Florida to self-
quarantine for a period of time.
10 World Health Organization, Coronavirus Disease (COVID-19) Advice for the Public: When and How to Use Masks (Dec. 1, 2020),
https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/when-and-how-to-use-masks (last visited March 3,
2021).
11 The Agency for Health Care Administration facility information and alerts page is demonstrative of the ever-changing COVID-19
guidance health care providers and long-term care facilities have received throughout the duration of the pandemic,
https://ahca.myflorida.com/COVID-19_Facilities.shtml#facility (last visited on March 3, 2021).
12 See The COVID-19 Pandemic: Biological Evolution, Treatment Options and Consequences, Das S, Das S, Ghangrekar MM,
Innovative Infrastructure Solutions, 2020;5(3):76, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7330532/ (last visited on
March 3, 2021); see also, Coronavirus Treatment Acceleration Program (CTAP), U.S. Food and Drug Administration, available at
https://www.fda.gov/drugs/coronavirus-covid-19-drugs/coronavirus-treatment-acceleration-program-ctap (last visited on March 3, 2021);
Additionally, the Centers for Disease Control and Prevention, among others, periodically updates its guidance for clinical care,
prevention and control and facility operations. See Healthcare Workers: Information on COVID-19, Centers for Disease Control and
Prevention, available at https://www.cdc.gov/coronavirus/2019-nCoV/hcp/index.html (last visited March 3, 2021).
13 Personal protective equipment includes, among others, masks, face shields, gloves, shoe covers and gowns.
14 Contributing Factors to Personal Protective Equipment Shortages During the COVID-19 Pandemic, Cohen J, Rodgers YVM., Prev
Med. 2020;141:106263. doi:10.1016/j.ypmed.2020.106263, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7531934/pdf/main.pdf (last visited March 3, 2021); see also Shortages of Staff in
Nursing Homes During the COVID-19 Pandemic: What are the Driving Factors?, J Am Med Dir Assoc. 2020 Oct; 21(10): 1371–1377,
available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7418696/pdf/main.pdf (last visited March 3, 2021).
15 Non-Emergent, Elective Medical Services, and Treatment Recommendations, Centers for Medicare and Medicaid Services, April 7,
2020, available at https://www.cms.gov/files/document/cms-non-emergent-elective-medical-recommendations.pdf (last visited March 3,
2021).
16 See Fla. Exec. Order 20-72 (March 20, 2020), available at https://ahca.myflorida.com/docs/EO_20-72.pdf (last visited March 3,
2021).
17 See Fla. Exec. Order 20-51 (March 1, 2020), available at https://ahca.myflorida.com/docs/Executive_Order_20-51.pdf (last visited
March 3, 2021).
18 See Fla. Exec. Order 20-83 (March 24, 2020) (indicating the State Health Officer's declaration of public health emergency).
19 See Fla. Exec. Order 20-52 (March 9, 2020), available at https://ahca.myflorida.com/docs/Executive_Order_20-52_COVID-19.pdf
(last visited March 3,, 2021).
20 See Fla. Exec. Order 20-72 (March 20, 2020), available at https://ahca.myflorida.com/docs/EO_20-72.pdf (last visited March 3,
2021).
21 See Fla. Exec. Order 20-80 (Mar. 23, 2020) and 20-82 (Mar. 24, 2020).
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April 1, 2020:22 Directing Floridians to stay at home, with exceptions for "essential" services and
activities.
May 4, 2020:23 Allowing the elective procedures prohibited in the March 20, 2020, Order to
resume as long as the provider had adequate PPE, capacity to covert treatment beds in a surge
capacity situation and had not refused to assist long-term care facilities.24
While some of the Governor's executive orders eventually expired or were modified, the Governor has
continued to extend the state of emergency, with the most recent extens