MEDICALMALPRACTICE A PRACTITIONER’S GUIDE: ANTICIPATING THE PITFALLS OF FLORIDA STATUTE § 768.381 by Marcus J. Michles, II To quote the January edition of the FJA Journal , even without considering the impact of the pandemic or the then-nascent immunity legislation: “Medical malpractice litigation in today’s environment is rife with obstacles and perils.” 1 Brace yourselves. Legislation poorly drafted and hastily passed in the most recent legislative session has created a legal labyrinth filled with hurdles of construction, time bombs, shifting standards of care, and ill-defined affirmative defenses that will impact medical malpractice litigation in Florida for years to come. Most concerning, this legislation provides defendants in medical malpractice litigation the ability to raise COVID-19-type defenses whether or not there is a tangible nexus between the alleged malpractice and COVID-19. Before addressing the medicine in the case, we will be litigating the sweeping immunity provisions and shortened statute of limitations, among other protections in the law. Since Gov. Ron DeSantis issued a state of emergency through Executive Order 20-52, Florida citizens of all backgrounds have been heroically confronting personal, professional, and health care crises. 2 Many have lost loved ones. All Floridians owe a debt of gratitude to medical providers and other essential workers who have worked tirelessly to continue providing health care services despite the uncertainty — and danger — surrounding COVID-19. Unfortunately, in legislative haste — purportedly to protect businesses and the health care industry at large — lawmakers have delivered a muddled and potentially sweeping set of protections. Their efforts will only hurt Florida citizens most in need of protection under the law. At the time of this article’s submission, Gov. DeSantis has just signed Senate Bill 72 into law. 3 Perhaps well-intended, Senate Bill 72 and 38 | May/June 2021 | www.MyFJA.org
Journal FJA Issue 620: Page 38
