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Thursday July 2, 2020
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July 2020 - Volume 17 - Issue 1
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The Florida Medical Association, Florida Osteopathic Medical Association, Florida Justice Reform Institute, others seek clarification on Executive Order No. 20-72, offer solutions for unintended consequences

 

March 26 2020 -  The Florida Medical Association (FMA), along with the Florida Osteopathic Medical Association (FOMA), Florida Justice Reform Institute (FJRI) and other health care providers and facilities today sent a letter to Florida Governor Ron DeSantis requesting guidance on Executive Order No. 20-72, which suspends non-essential elective medical procedures. 

The March 20, 2020 Executive Order, the letter states, “will have unintended consequences” …  for those “health care providers [who] are required to make new and difficult decisions on which patients to see and treat immediately, and which patients can wait for care until the executive order is lifted.”
 
FMA President Ronald F. Giffler, MD, JD, MBA said, “We ask Gov. DeSantis to immediately consider these medical professional liability protections to allow health care providers to make the necessary decisions without fear of lawsuits as a result of those decisions, under Executive Order No. 20-72.” 
“The Florida Osteopathic Medical Association joins other providers in seeking guidance under the executive order and believe these suggested solutions will allow physicians to provide much needed care for Florida patients,” said Eric A. Goldsmith, DO, FACOS, president, FOMA. 
 
"Gov. DeSantis’ bold leadership on this issue will require medical providers to make tough decisions. We’re all in this together, and medical providers' first priority should be taking care of the sick, not worrying about being sued for trying to comply with a government order in a national emergency," said William Large, president, Florida Justice Reform Institute.
The organizations offered the following solutions to address “the potential liability that health care providers will likely face based on the decisions they are forced to make during the crisis.”
1. Suspend certain provisions of the Good Samaritan Act by executive order: Providing any person, including those licensed to practice medicine, who in good faith render emergency care or treatment in direct response to a public health emergency, without objection of the injured party, would not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment.
2. Limit liability by executive order: Utilizing broad emergency management powers under section 2536, Florida Statutes, and Executive Order No. 20-52 to provide that health care providers acting in compliance with Executive Order No. 20-72 are immune to civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such health care provider.
3. Extend sovereign immunity to health care providers acting in compliance with Executive Order No. 20-72: Issuing an executive order deeming all health care providers providing service in compliance with Executive Order No. 20-72 as doing so under the auspices of and as agents of the Florida Department of Health, such that this conduct is subject to the immunity extended by section 768.28, Florida Statutes.  
The letter also notes that, “The Governor of New York recently issued an executive order responding to a similar problem, suspending certain provisions of New York law to provide immunity to health care providers from civil liability ‘for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional.’”
Letter sent to Governor Ron DeSantis by Florida’s Health Care Providers and Facilities 
March 26, 2020
The Honorable Ron DeSantis
Governor, State of Florida 
PL 05 Capitol
400 South Monroe Street 
Tallahassee, Florida 32399
Re: Medical Professional Liability Protections 
 
Dear Governor DeSantis:
The undersigned and listed organizations appreciate the recent actions you have taken to assist physicians, hospitals, and other health care providers on the frontlines of the COVID-19 pandemic. We understand the need to conserve the resources necessary to treat those infected with the virus while being able to continue care for those with other medical conditions, all balanced against the need to protect the health and safety of health care providers. Your recent Executive Order No. 20-72, which suspends the provision of non-essential elective medical procedures, will help to accomplish these objectives.
This order, however, will have unintended consequences. As a result of your directives in Executive Order No. 20-72, health care providers are required to make new and difficult decisions on which patients to see and treat immediately, and which patients can wait for care until the executive order is lifted. Those health care providers who decide to move forward with treatment may have to do so with inadequate resources, such as a lack of personal protective equipment. These providers risk exposing their staff, their patients, and themselves to infection from the virus.
It is not difficult to imagine the potential liability that health care providers will likely face based on the decisions they are forced to make during this crisis. The Governor of New York recently issued an executive order responding to a similar problem, suspending certain provisions of New York law to provide immunity to health care providers from civil liability "for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State's response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional."
Something must be done to ensure Florida's health care providers are able to make the hard, necessary decisions required by Executive Order No. 20-72 without fear of later having to defend themselves against lawsuits as a result of those decisions. We offer three potential solutions below, but welcome the opportunity to discuss these and other potential solutions.
Suspend certain provisions of the Good Samaritan Act by executive order. You, or the Director of Emergency Management as your State Coordinating Officer, may issue an executive order or emergency order temporarily suspending the effect of the following provisions of statute as these provisions would "prevent, hinder, or delay any mitigation, response, or recovery action necessary to cope with this emergency," Executive Order No. 20-52,
Section 2. Specifically, we ask you to consider suspending the application of the following language in section 768.13{2)(a), Florida Statutes:
the clause "gratuitously and"; and
the clause "where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances,"
This would provide that any person, including those licensed to practice medicine, who in good faith render emergency care or treatment in direct response to a public health emergency, without objection of the injured party, would not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment. This will support the directives required by Executive Order No. 20-72 by encouraging health care providers to provide all necessary treatment and to postpone non-essential treatment without the fear of liability.
 
Limit liability by executive order. Another option would be to use your broad emergency management powers under section 252.36, Florida Statutes, and Executive Order No. 20-52 to provide that health care providers acting in compliance  with Executive Order No. 20-72 are immune to civil liability for any injury or death alleged  to have been sustained directly as a result of an act or omission by such health care provider.
 
Extend sovereign immunity to health care providers acting in compliance with Executive Order No. 20-72. Alternatively, we ask you to consider issuing an executive order deeming all health care providers providing service in compliance with Executive Order No. 20-72 as doing so under the auspices of and as agents of the Department of Health, such that this conduct is subject to the immunity extended by section 768.28, Florida Statutes. We acknowledge that this may require additional action by the Department of Health or another state agency to ensure such state agency has the requisite control over health care providers acting pursuant to Executive Order No. 20-72 to entitle them to sovereign immunity. We would note that you appear to have done something similar in Executive Order No. 20-52, by authorizing health care providers licensed by states other  than Florida to render medical services in Florida during the emergency under the auspices of the American Red Cross or the Department.
 
Please contact us if we can provide additional information. Jeff Scott, General Counsel for the Florida Medical Association can be reached at 850.224.6496; and William Large, President of the Florida Justice Reform Institute can be reached at 850.222.0170.
 
Sincerely,
Ronald F. Giffler, MD, President, Florida Medical Association
Eric F. Goldsmith, DO, FACOS, President, Florida Osteopathic Medical Association
William W. Large, President, Florida Justice Reform Institute
 
Supporting organizations:
 
Safety Net Hospital Alliance of Florida  
Teaching Hospital Council of Florida
Florida Chamber of Commerce 
Associated Industries of Florida
Florida Society of Anesthesiology  
Florida Society of Ophthalmology
Florida Society of Pathology       
Promise Fund of Florida
Florida Pediatric Medical Association   
Florida Chapter, American College of Physicians 
Florida Chapter, American College of Surgeons 
Florida Society of Plastic Surgeons
National Lipid Association     
Florida Neurosurgical Society 
Florida Chapter of the American Academy of Pediatrics 
Florida Orthopaedic Society
Florida Society of Nephrology
Florida College of Emergency Physicians
Florida Society of Rheumatology    
Florida Radiological Society
Florida Academy of Family Physicians    
The Doctors Company
US Anesthesia Partners   
Medical Professional Liability Association
MagMutual Insurance Company
ProAssurance Corporation 
Florida Chapter of American College of Cardiology  
Florida Insurance Council 
National Association of Mutual Insurance Companies   
Florida Psychiatric Society 
Florida Society of Physical Medicine and Rehabilitation 
NORCAL Group
Florida Society of Thoracic and Cardiovascular Surgeons 
Florida Society of Dermatology and Dermatologic Surgery 
American Property and Casualty Insurance Association
 
About Florida Medical Association (FMA)
Founded in 1874, the FMA is a professional association dedicated to the service and assistance of Doctors of Medicine and Doctors of Osteopathic Medicine in Florida. The FMA represents more than 25,000 members on issues of legislation and regulatory affairs, medical economics and education, public health, and ethical and legal issues.  The association advocates for physicians and their patients to promote the public health, ensure the highest standards of medical practice, and to enhance the quality and availability of health care in the Sunshine State. For more information on the FMA, please visit www.flmedical.org, follow @FloridaMedical and like FB.com/FloridaMedical.
About Florida Osteopathic Medical Association (FOMA)
The Florida Osteopathic Medical Association (FOMA) is the state association for osteopathic physicians in Florida. The FOMA has been serving osteopathic physicians since 1904. It was organized for the purposes of advancing the science and art of osteopathic medicine; extending the benefits of scientific advancement to the treatment, prevention, and alleviation of human ailments; and promoting closer relationships between the osteopathic profession, FOMA members, and other groups dedicated to improved health care. For more information, go to www.foma.org. 
About Florida Justice Reform Institute (FJRI)
The Florida Justice Reform Institute was created in 2005 to restore fairness and personal responsibility to Florida’s civil justice system by fighting wasteful litigation through legislation, promoting fair and equitable legal practices, and providing information about the state of civil justice in Florida. Visit www.fljustice.org for more information.
Editor’s Note: 
A copy of Executive Order 20-72 is linked here and shown below for your convenience.
 
STATE OF FLORIDA
OFFICE OF THE GOVERNOR
EXECUTIVE ORDER NUMBER 20-72
(Emergency Management – COVID-19 – Non-essential Elective Medical Procedures)
 
            WHEREAS, Novel Coronavirus Disease 2019 (COVID-19) is a severe acute respiratory illness that can spread among humans through respiratory transmission and presents with symptoms of cough, fever, and shortness of breath; and
WHEREAS, on March 1, 2020, I issued Executive Order number 20-51 directing the Florida Department of Health to issue a Public Health Emergency; and
            WHEREAS, on March 1, 2020, the State Surgeon General and State Health Officer declared a Public Health Emergency exists in the State of Florida as a result of COVID-19; and
            WHEREAS, on March 9, 2020, I issued Executive Order 20-52 declaring a state of emergency for the entire State of Florida as a result of COVID-19; and
            WHEREAS, on March 18, 2020, President Donald J. Trump and the Centers for Medicare and Medicaid Services recommended providers limit all “non-essential” elective medical and surgical procedures, including dental procedures; and
WHEREAS, due to the outbreak of COVID-19, the State Surgeon General and the Secretary for the Agency of Health Care Administration have recommended, due to the current conditions caused by COVID-19 in this state, that appropriate measures must be taken to conserve all medical supplies, including personal protective equipment, to only that which is necessary to be used in response to this emergency or for any other medical event of urgent or emergent nature; and 
WHEREAS, due to the outbreak of COVID-19, it is necessary to preserve essential resources for use by health care professionals and others responding to this emergency, including personal protective equipment, that may be used by physicians, dentists, and other health care provider practices; and
            WHEREAS, it is necessary and appropriate to take action to ensure that COVID-19 remains controlled, and that residents and visitors in Florida remain safe and secure; 
            NOW, THEREFORE, I, RON DESANTIS, as Governor of Florida, by virtue of the authority vested in me by Article IV, Section (1)(a) of the Florida Constitution, Chapter 252, Florida Statutes, and all other applicable laws, promulgate the following Executive Order to take immediate effect:
Section 1. Because of the foregoing conditions, and based on recommendations from the Department of Health and the Agency for Health Care Administration by reason of conditions arising from this emergency, I hereby employ the following measures and direct as follows:
Pursuant to section 252.36(7), Florida Statutes, 
A. All hospitals, ambulatory surgical centers, office surgery centers, dental, orthodontic and endodontic offices, and other health care practitioners’ offices in the State of Florida are prohibited from providing any medically unnecessary, non-urgent or non-emergency procedure or surgery which, if delayed, does not place a patient’s immediate health, safety, or well-being at risk, or will, if delayed, not contribute to the worsening of a serious or life-threatening medical condition. Accordingly, all health care practitioners licensed in the State of Florida, including dentists, shall immediately cease performing these elective services. 
B. As articulated in the Centers for Medicare and Medicaid Services recommendation, examples of procedures to delay may include, but are not limited to, some endoscopy, most cataract and lens surgeries, non-urgent spine and orthopedic procedures, and cosmetic procedures.
C. As articulated in the Centers for Medicare and Medicaid Services recommendation, permissible procedures include, but may not be limited to, removal of a cancerous tumors, transplants, limb-threatening vascular surgeries, trauma-related procedures, and dental care related to the relief of pain and management of infection.
Section 2. The Agency for Health Care Administration and the Department of Health shall utilize their authority under Florida law to further implement and enforce the provisions of this Executive Order and shall take additional measures as necessary to protect the public health, safety and welfare.
Section 3. This Executive Order shall expire upon the expiration of Executive Order 20-52, including any extensions.
 
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