Michael Freedland, partner with Freedland Harwin Valori in Fort Lauderdale.

Tumultuous times can bring out the best in some and the worst in others. In order to treat those infected by COVID-19, many of our health care workers have had to make incredible sacrifices. They are undeniably deserving of our gratitude and appreciation.

On the other hand, insurance companies and large for-profit health care companies have recently tried to take improper advantage of the pandemic by hiring high-priced lobbyists to advocate for broad blanket immunity for the owners of health care facilities. The immunity they seek has nothing to do with helping patients, nor helping health care providers. Instead, it has everything to do with increasing owner profits.

Such draconian measures would create an incredibly dangerous environment for anyone who needs health care of any kind. It is not even limited to treatment of COVID-19. And it is completely unnecessary. Why?

First, while the vast majority of physicians are competent, some are not. Even though it is incredibly difficult to bring a malpractice case, existing laws are very effective at identifying and holding incompetent physicians accountable for their actions. Basic fairness demands that those injured by incompetence, or reckless behavior, should have access to justice for their horrific injuries.

Second, Florida law already provides numerous safeguards that make it almost impossible to file unwarranted claims long before COVID-19:

• Florida law mandates a presuit investigation, as a prerequisite to filing a lawsuit;
• A patient MUST have the case reviewed by an expert in the same specialty who then MUST sign an Affidavit attesting to the substandard care;
• Florida law already provides immunity to hospitals and healthcare providers during treatment of an emergency unless the patient can prove, "reckless disregard for the consequences;"
• Immunity already exists for doctors providing "free care" to the indigent population; and,
• There is declared emergency immunity which bars claims for services being provided to such person during the period of the declared emergency for which no compensation is being sought.

These incredibly thorough protections make it almost impossible to file an unwarranted claim against a health care provider already.

Moreover, the general standard for medical malpractice is that a healthcare provider must meet only the minimum standard of care. This necessarily viewed in the context of all of the circumstances, including the complexities of providing care to COVID-19 patients.

Third, the federal CARES Act created additional protections that are adequate and are actually tailored and aimed at issues relating to COVID-19, not the needs of insurance and big healthcare businesses. The CARES Act provides immunity for volunteer health care workers and medical personnel using covered medical devices. The 2005 PREP Act permits the DHHS secretary to specify which counter measures and covered persons would be eligible for immunity. The designation (effective Feb. 4) provides immunity for counter measures that include, "any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine used to treat, diagnose cure, prevent, or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration of any such product, and all components and constituent materials of any such product." The DHSS secretary then further broadened the immunity to provide protection to those authorized to, "prescribe, administer, deliver, distribute or dispense the covered countermeasures, and their officials, agents, employees, contractors and volunteers."

Between these federal measures specifically directed at COVID-19 treatment and existing Florida laws, there is more than ample protection provided to both our health care providers and long-term facilities, as well as their staff.

Simply put, this is an issue fabricated by insurance companies and private hospital corporations at the expense of consumers. There is absolutely no evidence to suggest that Florida is experiencing, nor likely to experience, an increase in frivolous claims. Current law already protects healthcare providers except in the cases of the most outrageous conduct.

This reasoning applies even more so to long term facilities (including nursing homes). We entrust our loved ones to these facilities and they owe our elderly the dignity of a safe and sanitary environment. Several nursing homes have already been shut down or cited for outrageously unsafe conditions. There is no moral or legal justification to provide them with blanket immunity. In addition, nursing homes, already have the same heightened protection similar to the medical presuit investigation requirement. Indeed, this presuit requirement has another protection mechanism of mandatory mediation as a prerequisite of filing a lawsuit. The filing of unwarranted claims against these facilities is exceedingly difficult and almost non-existent.

This is the time when we turn to our elected officials to focus on leadership to protect our most vulnerable and those who have been horribly impacted by this pandemic. This is a time when our leaders should be focused on finding ways to control the spread of this disease and protect us all from getting sick. It is not the time to play politics and provide a gift to insurance companies and private hospital corporations at the expense of those injured by incompetent care. It is not the time to allow the small few number of incompetent providers go completely unchecked as they never have before in the history of jurisprudence and our legal system.

Michael Freedland is a founding partner of Freedland Harwin Valori. His practice focuses on cases involving medical malpractice, pharmaceutical liability, products liability, as well as those involving catastrophic injury from motor vehicle accidents. Contact him at [email protected] or call 954-467-6400.