Yesterday, the Tampa Bay Times published a story on COVID cases rising at nursing homes right as Florida law has made it impossible to sue nursing homes over coronavirus outbreaks. SB 72 has raised the requirement for people who want to file a claim against nursing homes for virus-related harm since being signed into law in March. Now, recent outbreaks at nursing homes have caused advocates and lawmakers to reconsider the law’s impact on the public good.
By the end of last month, 1 in 5 COVID nursing home deaths (either of staff or residents) occurred in Florida. The elderly population is particularly susceptible to COVID; over a third of our state’s coronavirus deaths were among long-term care recipients. Critics say the issue is the low rate of vaccination. Florida ranks at 49 for nursing home vaccination rates, coming behind every state except Louisiana.
How Negligent Nursing Homes Benefit from SB 72
The Florida Health Care Association represents 4 of 5 nursing homes in Florida, and they reported that there were about 90 pending lawsuits prior to the passage of SB 72. Since March, there have been zero filings. Lawyers for nursing homes point to the law as a necessary protection to prevent a flood of lawsuits, and the lack of lawsuits means the law is working.
Plaintiffs lawyers, including our own Stephen Cain, see it differently. The law isn’t preventing frivolous lawsuits; it’s preventing valid claims from being pursued because the bar is now impossibly high.
“We have literally received hundreds of calls related to COVID since the law was passed,” Stephen said to the Tampa Bay Times. “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.”
The New Bar for Nursing Home Outbreak Victims
Under the law, nursing home residents or their families seeking to sue for injury or death due to COVID-19 must prove that a specific individual intended to cause harm or showed a conscious disregard for their life. Plaintiffs also need a sworn statement from a doctor agreeing that the defendant caused the infection. Even if you could prove that a specific staff member came to work with COVID, it wouldn’t matter unless the victim only had contact with that staff member.
The burden of proof is also higher for nursing home cases than for other cases. Typically, lawyers have to prove that there’s an over 50% chance their allegations are true. Under SB 72, the requirement for certainty is far tougher to clear. Given the reality of how disease spreads in a healthcare facility, it’s nearly impossible to file a lawsuit against nursing homes, even if you know that it was a staff member who caused an outbreak.
“Ultimately, this effectively prevents practitioners like me from pursuing all but the very most egregious cases,” Stephen said.”And only in instances where you’re able to uncover the egregiousness before you file suit.”
The reality is that most negligence, even negligence at nursing homes, is not malicious. That doesn’t change the fact that a facility might still cause harm, regardless of its intent. The new law denies that reality, deeming cases of purposeful malice or conscious disregard the only cases worth hearing in court. That’s unjust and unfair to the dozens of families whose loved ones needlessly died or suffered grievous injury.