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The coronavirus has hit Florida’s long-term care facilities hard. Statewide, 1,222 residents and staff of nursing homes and assisted living facilities have contracted the virus. The number has more than tripled since last week, when there were 380 cases. Gov. Ron DeSantis, a Republican, announced on Monday that the state will ramp up testing in the facilities. (DeSantis’ administration has largely refused to release data on the spread of the virus in facilities.) At a press conference a few weeks ago, DeSantis attacked one assisted living facility with a known outbreak where at least seven residents died. The governor said the facility’s conduct was negligent and possibly criminal. Yet now the governor is considering a request to grant legal immunity to long-term care facilities—in fact, to all health care providers.
Miami Herald reporter Carol Marbin Miller recently explained that “the long-term care industry in Florida has been one of the most powerful industries and interest groups in the state for a long, long time.” The industry’s lobbying group is the Florida Health Care Association. On April 3, FHCA sent a letter to DeSantis with a startling request. FHCA wrote: “Governor DeSantis, we ask you to extend sovereign immunity to health care professionals and health care facilities”—not just long-term care facilities—“engaged in responding to the COVID-19 outbreak.” Sovereign immunity is the general rule that people can’t file tort lawsuits against the state unless the conduct falls within a limited exception. In an emailed statement to me, Kristen Knapp, FHCA’s spokesperson, told me: “In the midst of this unprecedented crisis, long term caregivers should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making tough decisions while trying to comply with government directives.”
If the governor grants the request, all health care providers would enjoy “sweeping protections” from pandemic-related lawsuits for everything but gross negligence, reckless misconduct, or intentional misconduct. Importantly, health care providers would be immune for anything caused by resource or staffing shortages. FHCA also asked for similar immunity from criminal prosecution. (Disclosure: My practice includes the representation of plaintiffs in medical malpractice cases.)
DeSantis is considering FHCA’s request. On Tuesday he said that it’s under review but he hasn’t made a decision yet. According to the News Service of Florida, which broke the story last week, the head of the state’s Agency for Health Care Administration told nursing home providers that “[t]he governor’s office, their legal team, legal teams from the other state agencies, are currently evaluating what can be done and what is in the best interest in addressing the concerns that you’ve identified.”*
Let me help: The governor does not have the power to grant the request.
The starting point is something the federal Constitution doesn’t have—an express codification in the Florida Constitution of the separation of powers doctrine. Article 2, Section 3 says: “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” The Supreme Court of Florida strictly applies the doctrine, which, it has explained, “encompasses two fundamental prohibitions. The first is that no branch may encroach upon the powers of another. The second is that no branch may delegate to another branch its constitutionally assigned power.”
To assess the legality of FHCA’s request, we have to identify the powers it implicates and to which branch they belong. The request really concerns two things: an individual’s ability to bring a lawsuit for some misconduct (the cause of action) and the state’s shield against such a suit (sovereign immunity). Here, the most likely causes of action are common-law negligence and medical malpractice, as well as several established by the Legislature: wrongful death and violations of the nursing home residents’ and assisted living facility residents’ respective bills of rights.
Take the causes of action first. The Florida Supreme Court said in 1948 that “the legislature has the power to, and may, limit or abolish [causes of action].” FHCA’s request, if granted, would affect patients’ causes of action against health care providers by limiting their ability to bring lawsuits against them. Second, there is one constitutional provision, Article 10, Section 13, that assigns the power over immunity to the Legislature, not the governor. As one Florida appellate court said, “The legislature has the discretion to place limits and conditions upon the scope of the sovereign immunity waiver.”
So DeSantis can’t just extend sovereign immunity by executive fiat to health care providers who’ve provided negligent treatment to coronavirus victims. Doing so would usurp two of the Legislature’s powers.
The Legislature also cannot delegate these powers to the governor. Under Florida case law, the Legislature cannot “delegate the power to enact a law or the right to exercise unrestricted discretion in applying the law.” Yet that’s exactly what the Legislature would have to do to give FHCA what it wants.
The governor could get creative within the existing legal framework. The statute granting a limited waiver of sovereign immunity provides that “corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities” also enjoy immunity. Knapp, FHCA’s spokesperson, may have hinted at this provision when she said caregivers are “trying to comply with government directives.” But the key word here is “primarily”; generally, to fit into this exception, a corporation must be subject to substantial government control of its day-to-day operations. This makes sense. If the state controls a corporation, the corporation should benefit from the state’s immunity. Most corporations that FHCA has in mind won’t meet this standard, however, since they’re merely following the government’s directions, not ceding control to the state.
FHCA appears to be requesting an executive order, but it is also worth considering whether the Legislature could pass a law granting FHCA’s request at its next regular session. The answer is no. The law would run headlong into the rule that a law cannot apply retroactively if it would destroy a vested right. A cause of action that has accrued—that is, has become a legally enforceable claim—is a vested right. Many coronavirus-related causes would become enforceable by the next legislative session. The Florida Supreme Court has already held that legislation extending sovereign immunity to people not previously covered cannot be applied to someone who already has a legally enforceable claim. Not even the Legislature could exercise its powers to extend immunity and abridge causes of action in these circumstances.
Health care providers in Florida are dealing with a public health emergency. They will have to make tough decisions when caring for patients. Sometimes those decisions will be negligent and result in injury or death, and it is a certainty that lawsuits will be filed over this coronavirus-era treatment. Indeed, health care providers in Florida could be facing an unprecedented exposure to liability. But DeSantis does not have the power to extend sovereign immunity to health care providers with the stroke of a pen. As he said on Tuesday when criticizing other states’ mitigation efforts, “Just because there’s an emergency, that does not give the governor unlimited authority.” Hopefully the governor’s lawyers will tell him so before he violates the Florida Constitution yet again.
Correction, April 16, 2020: This article originally stated that BuzzFeed News broke this story.