In late March, Governor DeSantis signed Senate Bill 72 into law providing vast protections for nursing homes from liability for Covid infections. The law applies to more than just nursing homes, it also applies to hospitals, schools, churches and state governmental agencies. As Jacksonville nursing home lawyers, our focus is on the effect this will have for residents or family members who suffered personal injury or death due to Covid infections.
Not surprisingly, we saw some of the worst outbreaks of Covid at the worst nursing homes in Jacksonville. Nevertheless, nursing homes that were more careless than others may see no repercussions for their failure to respond to Covid. We do not think that any legal protection from Covid claims was necessary for nursing homes. Infectious disease concerns are nothing new in the nursing home realm. Nursing homes must be constantly vigilant for contagious infections including: clostridium difficile (“c diff”); scabies; certain urinary tract infections; and tuberculosis, to name a few.
The new law provides many obstacles for a claimant asserting the nursing home ignored Covid concerns. First, the claimant must establish that the nursing home was “grossly negligent.” Normally, a plaintiff in a nursing home neglect lawsuit provide oridinary negligence, i.e., that the nursing home failed to meet general nursing standards of care. Now, presumably, a nursing home operator that neglected coronavirus issues will not be responsible for residents who were unnecessarily infected, provided the nursing home operator did not act “grossly” negligent.
The difference is much more than semantics. Instead of merely having to prove that the nursing home failed to satisfy general nursing home standards, the plaintiff must now prove that the nursing home operators had a deliberate and reckless disregard for the safety and reasonable treatment of residents.
Furthermore, a claimant must now obtain an affidavit from a physician and file that affidavit when suit is filed. Previously, a claimant merely had to have the matter reviewed by a registered nurse. This makes the process more difficult and expensive for the nursing home attorneys representing nursing home injury cases related to Covid. Our attorneys handling nursing home injury claims in Jacksonville front all costs associated with prosecuting a claim, but, at the end of the case, the money we spend is paid back from any settlement or judgment. So, we try to mindful of the expenses we incur as we pursue a case.
Once suit is filed, the court is required to make an initial determination whether the plaintiff pled the complaint with “particularity” (which means more facts than normal are required) and whether the defendant made a good faith effort to comply with government issued health standards. If the court finds that the nursing home operator made a good faith effort, the nursing home will be immune from liability and the lawsuit will be dismissed.
The burden of proof is on the claimant to establish that the nursing home operator failed to make a “good faith effort” to comply with the Covid health standards. If a court determines that the nursing home operator made a “good faith effort” to comply, then the nursing home is immune from civil liability. What constitutes good faith will be determined on a case by case basis and the trial court’s determination in this regard will be very hard to overturn on appeal.
The law also applies retroactively, creating a one-year statute of limitations for all Covid claims. Normally, nursing home neglect claims have a two year statute of limitations. Continue reading