In response to the expanding population of Floridians who are or are expected to be infected with COVID-19, on Friday, 3/21, Governor Ron DeSantis issued Executive Order 20-72, “Non-essential Elective Medical Procedures”. The Governor previously issued Executive Order 20-52, wherein he determined COVID-19 has created a Public Health Emergency in Florida. In his latest Executive Order, the Governor concludes, in relevant part, that all Florida health care providers and professionals –

 

 

The impact of this Executive Order has yet to be evaluated. Clearly, some medical specialties are likely to experience more significant business downturns than others. For example, plastic surgeons who focus on cosmetic surgery may have a difficult time documenting many of their procedures cannot be delayed. In contrast, cardiac surgeons, and the facilities where they practice, may not be seriously impacted.

 

Executive Order 20-52 should not be read as requiring health care providers and practitioners to cease all operations and close the doors. Indeed, nothing in the order relieves a health care professional of their existing duties and obligations. For example, there is nothing in Governor DeSantis’ order that suggests a physician may abandon treatment of a patient. Moreover, in an instance where it can be shown that delaying or postponing a patient’s procedure or surgery would either (i) “place a patient’s immediate health, safety, or well-being at risk”, or (ii) “contribute to the worsening of a serious or life-threating medical condition”, the order explicitly authorizes the delivery of medically necessary, urgent, or emergency procedures and surgeries.

 

Interestingly, the Governor made no mention of medical marijuana treatment centers (“MMTCs) in the order. Rather, by its terms, Executive Order 20-52 applies to “hospitals, ambulatory surgical centers, office surgery centers, dental, orthodontic and endodontic offices, and other health care practitioners’ offices in the State of Florida.” It does not appear that an MMTC fits into any of the categories of providers and professionals addressed by the Governor.

 

That is not to say someone, perhaps a zealous state or local official, will seek to argue that MMTCs should be held to the same restrictions. In order for them to be included a plaintiff likely would have to demonstrate that (i) an MMTC is providing health care procedures, and (ii) that withholding/delaying medical marijuana would not endanger a patient’s health or contribute to a worsening of their condition. It is possible a plaintiff might demonstrate that in providing medical marijuana an MMTC is providing a health care procedure. However, under Florida’s scheme for regulating medical marijuana it is difficult to anticipate a plaintiff also would succeed in arguing that withholding something which has been authorized by a physician to address a current medical or psychological condition would not endanger that patient’s health or contribute to the worsening of their condition.

 

COVID-19 raises almost daily questions that impact our health care delivery system and our medical and financial health. At the same time, this virus is raising legal issues that have not been previously considered. Just as you should rely on a physician who specializes in infectious diseases, a banker, or an accountant for guidance on addressing those impacts (even if they do not have clear answers), so too you should turn to legal counsel who is working in the rapidly evolving area of the COVID-19/infectious disease law for guidance with questions concerning the impact of Executive Order 20-72 on your health care practice or business.