When the COVID pandemic hit the US early 2020, federal and state legislators rushed to erect liability protections for a healthcare system in crisis. With no established protocols for diagnosing and treating the novel virus, healthcare providers found themselves on precarious footing, facing protracted hours and significant personal health risks. In response, a comprehensive shield was legislated, offering broad immunity to healthcare workers for many types of potential errors, barring acts of willful misconduct.
Almost four years on, much has changed. COVID deaths have fallen to a fraction of their previous peak and the crisis stage of the pandemic is declared over. Healthcare providers now have established guidelines for managing the disease, along with clinically proven vaccinations and medications.
As the healthcare sector returns to order, one would expect liability protections from the early days of the crisis to be incrementally peeled away. Thereby restoring traditional legal avenues for victims to seek redress for their grievances. This hasn’t happened. The result: many sufferers of medical malpractice face a more difficult path to compensation, with some barred from compensation altogether.
If you have been the victim of medical malpractice, an experienced Florida medical malpractice attorney will be able to advise you if you have a valid claim. At Dolan Dobrinsky Rosenblum Bluestein we provide expert guidance in all types of medical malpractice and we handle each claim with care. Call us at 305-371-2692 or schedule a free consultation online.
The Importance of Medical Malpractice Claims
Each year thousands of medical malpractice claims are filed in the US, resulting in compensation to victims of a broad range of errors, from dermatology treatments gone wrong to botched surgical procedures. These claims play a key role in upholding patient rights, fostering higher medical standards, and reinforcing trust in the healthcare system by compelling accountability.
How Protections Hinder Florida Malpractice Claims
Victims of COVID-related medical malpractice in Florida face stringent limitations on pursuing compensation.
The Federal Public Readiness and Emergency Preparedness (PREP) Act requires the victim to show the medical practitioner acted with willful misconduct or recklessness. This is a higher standard than is applied in regular malpractice claims, where it’s sufficient to show that the practitioner failed to act with reasonable care.
In addition, Florida Senate Bill (SB) 72 requires the victim to:
- Provide a high level of detail in specifying what actions or inactions by the healthcare provider fell below the required standard of care;
- Support their claim with an affidavit signed by a licensed Florida doctor that shows their damages were a result of the practitioner’s actions;
- Bring their case to law within 12 months, rather than the usual two years allowed under the Florida statute of Limitations.
These COVID liability protections have substantially blocked malpractice claims in Florida. In the Medscape Malpractice Report 2021, none of the 4,300 physicians surveyed had been named in a COVID-related malpractice case. Since then, we’ve seen a limited number of COVID-related cases filed nationally, but these are far fewer than legislators initially envisaged.
COVID Protections Also Hinder Non-COVID Malpractice Claims
Not only have legislative protections prevented medical malpractice claims related to COVID, they’ve also presented a barrier to some non-COVID-related claims. Under SB 72, it’s possible for a healthcare provider accused of malpractice to claim that COVID-related circumstances impacted their ability to deliver services to an acceptable standard. SB 72 has also had broader implications on how Florida malpractice claims are processed.
These hindrances, combined with the reduction in healthcare visits and the temporary closure of Florida courts during COVID’s peak, have seen the number of successful malpractice claims in Florida plummet into 2020, by almost 20%. This reduction is all the more noteworthy when considered against the year-on-year growth in Florida malpractice claims seen pre-pandemic.
With the COVID crisis now over, and a return to order in Florida healthcare facilities, there’s a lower likelihood of SB 72 being successfully used to defend non-COVID-related malpractice claims. However savvy defense attorneys may continue to make use of this legislation where possible to stymie a malpractice claim.
No End In Sight For COVID Liability Protections
In May 2023, the U.S. Department of Health and Human Services announced the extension of the PREP Act, until the end of December 2024. As for Florida SB 72, it remains in effect with no sunset clause or any indication from the legislature of an intent to repeal or amend its provisions.
For victims of medical malpractice, especially relating to COVID, the path to justice will continue to be shrouded in complexity and uncertainty for some time. Enlisting the help of a skilled medical malpractice attorney is crucial.
How a Medical Malpractice Attorney Can Help
Under current provisions, sufferers of medical malpractice can still bring successful claims. For non-COVID-related malpractice claims, more care is required in preparing and presenting a case, while for COVID-related claims, prompt action and expert medical advice are a must.
Let Us Represent You
At Dolan Dobrinsky Rosenblum Bluestein our medical malpractice attorneys handle all types of medical malpractice claims and we closely monitor legislative developments.
If you have been the victim of medical malpractice, don’t leave the outcome to chance. Contact our team at Dolan Dobrinsky Rosenblum Bluestein at 305-371-2692 or schedule a free consultation online. From our office in Miami, we serve clients throughout Florida.