By: Hancock, et al. S.B. No. 6
(In the Senate - Filed March 10, 2021; March 11, 2021, read
first time and referred to Committee on Business & Commerce;
April 6, 2021, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 3; April 6, 2021,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 6 By: Hancock
A BILL TO BE ENTITLED
AN ACT
relating to liability for certain claims arising during a pandemic
or other disaster or emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 51.014(a), Civil Practice and Remedies
Code, is amended to read as follows:
(a) A person may appeal from an interlocutory order of a
district court, county court at law, statutory probate court, or
county court that:
(1) appoints a receiver or trustee;
(2) overrules a motion to vacate an order that
appoints a receiver or trustee;
(3) certifies or refuses to certify a class in a suit
brought under Rule 42 of the Texas Rules of Civil Procedure;
(4) grants or refuses a temporary injunction or grants
or overrules a motion to dissolve a temporary injunction as
provided by Chapter 65;
(5) denies a motion for summary judgment that is based
on an assertion of immunity by an individual who is an officer or
employee of the state or a political subdivision of the state;
(6) denies a motion for summary judgment that is based
in whole or in part upon a claim against or defense by a member of
the electronic or print media, acting in such capacity, or a person
whose communication appears in or is published by the electronic or
print media, arising under the free speech or free press clause of
the First Amendment to the United States Constitution, or Article
I, Section 8, of the Texas Constitution, or Chapter 73;
(7) grants or denies the special appearance of a
defendant under Rule 120a, Texas Rules of Civil Procedure, except
in a suit brought under the Family Code;
(8) grants or denies a plea to the jurisdiction by a
governmental unit as that term is defined in Section 101.001;
(9) denies all or part of the relief sought by a motion
under Section 74.351(b), except that an appeal may not be taken from
an order granting an extension under Section 74.351;
(10) grants relief sought by a motion under Section
74.351(l);
(11) denies a motion to dismiss filed under Section
90.007;
(12) denies a motion to dismiss filed under Section
27.003;
(13) denies a motion for summary judgment filed by an
electric utility regarding liability in a suit subject to Section
75.0022; [or]
(14) denies a motion filed by a municipality with a
population of 500,000 or more in an action filed under Section
54.012(6) or 214.0012, Local Government Code; or
(15) overrules an objection filed under Section
148.003(d) or denies all or part of the relief sought by a motion
under Section 148.003(f).
SECTION 2. Subchapter D, Chapter 74, Civil Practice and
Remedies Code, is amended by adding Section 74.155 to read as
follows:
Sec. 74.155. LIABILITY OF PHYSICIANS, HEALTH CARE
PROVIDERS, AND FIRST RESPONDERS DURING PANDEMIC. (a) In this
section:
(1) "Disaster declaration" means a declaration of a
state of disaster or emergency by the president of the United States
applicable to the entire state, a declaration of a state of disaster
by the governor under Chapter 418, Government Code, for the entire
state, and any amendment, modification, or extension of the
declaration.
(2) "First responder" has the meaning assigned by
Section 421.095, Government Code.
(3) "Pandemic disease" means an infectious disease
that spreads to a significant portion of the population of the
United States and that poses a substantial risk of a significant
number of human fatalities, illnesses, or permanent long-term
disabilities.
(b) Except in a case of reckless conduct or intentional,
wilful, or wanton misconduct, a physician, health care provider, or
first responder is not liable for an injury, including economic and
noneconomic damages, or death arising from care, treatment, or
failure to provide care or treatment relating to or impacted by a
pandemic disease or a disaster declaration related to a pandemic
disease if the physician, health care provider, or first responder
proves by a preponderance of the evidence that:
(1) a pandemic disease or disaster declaration related
to a pandemic disease was a producing cause of the care, treatment,
or failure to provide care or treatment that allegedly caused the
injury or death; or
(2) the individual who suffered injury or death was
diagnosed or reasonably suspected to be infected with a pandemic
disease at the time of the care, treatment, or failure to provide
care or treatment.
(c) Care, treatment, or failure to provide care or treatment
relating to or impacted by a pandemic disease or a disaster
declaration related to a pandemic disease under Subsection (b)
includes:
(1) screening, assessing, diagnosing, or treating an
individual who is infected or suspected of being infected with a
pandemic disease;
(2) prescribing, administering, or dispensing a drug
or medicine for off-label or investigational use to treat an
individual who is infected or suspected of being infected with a
pandemic disease;
(3) diagnosing or treating an individual who is
infected or suspected of being infected with a pandemic disease
outside the normal area of the physician's or provider's specialty,
if any;
(4) delaying or canceling nonurgent or elective
medical, surgical, or dental procedures;
(5) delaying, canceling, or not accepting in-person
appointments for office or clinical visits, diagnostic tests,
scheduled treatment, physical or occupational therapy, or any other
diagnosis or treatment of an illness or condition not related to a
pandemic disease;
(6) using medical devices, equipment, or supplies
outside of their normal use, including using or modifying such
devices, equipment, or supplies for an unapproved use, to treat an
individual who is infected or suspected of being infected with a
pandemic disease;
(7) conducting tests on or providing treatment to an
individual who is infected or suspected of being infected with a
pandemic disease outside the premises of a health care facility;
(8) acts or omissions caused by a lack of personnel or
staffing, facilities, medical devices, supplies, or other
resources attributable to a pandemic disease that renders a
physician, health care provider, or first responder unable to
provide the same level or manner of care to any individual that
otherwise would have been acquired in the absence of the disease;
and
(9) acts or omissions arising from the use or nonuse of
personal protective equipment.
(d) This section does not alter the scope of practice of a
physician, health care provider, or first responder under the laws
of this state.
(e) A defense under this section is in addition to any other
defense, immunity, or limitation of liability provided by law.
This section does not constitute a waiver of sovereign immunity of
this state or governmental immunity of a political subdivision.
(f) A physician, health care provider, or first responder
who intends to raise a defense under Subsection (b) must provide to
a claimant specific facts that support an assertion under
Subsection (b)(1) or (2) not later than the later of:
(1) the 60th day after the date the claimant serves an
expert report on the physician, health care provider, or first
responder under Section 74.351; or
(2) the 120th day after the date the physician, health
care provider, or first responder files an original answer in the
suit.
(g) This section applies only to a claim arising from care,
treatment, or failure to provide care or treatment that occurred
during a period beginning on the date that the president of the
United States or the governor makes a disaster declaration related
to a pandemic disease and ending on the date the declaration
terminates.
SECTION 3. The heading to Section 79.0031, Civil Practice
and Remedies Code, is amended to read as follows:
Sec. 79.0031. LIABILITY OF [VOLUNTEER] HEALTH CARE PROVIDER
OR HEALTH CARE INSTITUTION.
SECTION 4. Section 79.0031, Civil Practice and Remedies
Code, is amended by amending Subsections (a), (b), and (c) and
adding Subsection (e) to read as follows:
(a) In this section:
(1) "Health care institution" has the meaning assigned
by Section 74.001.
(2) "Health care liability claim" has the meaning
assigned by Section 74.001.
(3) "Health [Volunteer health] care provider" means:
(A) a first responder, as that term is defined by
Section 421.095, Government Code;
(B) a health care provider, as that term is
defined by Section 74.001;
(C) a physician, as that term is defined by
Section 74.001; and
(D) a volunteer health care provider, as that
term is defined [has the meaning assigned] by Section 84.003,
regardless of whether the[. The term includes an] individual [who]
is [not] affiliated with a charitable organization.
(b) Except in the case of reckless conduct or intentional,
wilful, or wanton misconduct, a [volunteer] health care provider is
immune from civil liability for an act or omission that occurs in,
or a health care liability claim that arises out of, giving care,
assistance, or advice if:
(1) the care, assistance, or advice is provided:
(A) [(1)] in relation to an incident that is a
man-made or natural disaster that endangers or threatens to
endanger individuals, property, or the environment; and
(B) [(2)] within the scope of the provider's
practice under the laws of this state; or
(2) the care, assistance, or advice is provided:
(A) in relation to a national or statewide health
care emergency that results in a declaration of a state of disaster
or emergency by the president of the United States applicable to the
entire state or a declaration of a state of disaster by the governor
under Chapter 418, Government Code, for the entire state;
(B) during a period beginning on the date the
declaration is made and ending on the date the declaration
terminates; and
(C) within the scope of the provider's practice
under the laws of this state.
(c) A health care institution is immune from civil liability
for:
(1) an act or omission by a [volunteer] health care
provider providing care, assistance, or advice at the institution's
facility or under the institution's direction if [:
[(1)] the provider is immune from civil liability under
Subsection (b); or [and]
(2) a health care liability claim arising out of the
circumstances described by Subsection (b) [the institution does not
have an expectation of compensation from or on behalf of the
recipient of the care, assistance, or advice in excess of
reimbursement for expenses incurred by the institution in
connection with the provision of the care, assistance, or advice].
SECTION 5. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 148 to read as follows:
CHAPTER 148. LIABILITY DURING PANDEMIC EMERGENCY
Sec. 148.001. DEFINITIONS. In this chapter:
(1) "Pandemic disease" has the meaning assigned by
Section 74.155.
(2) "Pandemic emergency" means a state of disaster
declared by the governor under Chapter 418, Government Code, in
response to a pandemic disease.
Sec. 148.002. PRODUCTS LIABILITY ACTIONS RELATED TO
PANDEMIC EMERGENCY. (a) This section applies only to the following
products:
(1) clothing or equipment worn to minimize exposure to
hazards of a pandemic disease that cause injury or illness;
(2) medical devices, equipment, and supplies used
during a pandemic emergency or to treat individuals infected or
suspected to be infected with a pandemic disease, including
devices, equipment, and supplies used or modified for an unapproved
use to treat or prevent the spread of the disease or used outside of
their normal use to treat or prevent the spread of the disease;
(3) drugs, medicines, or vaccines used to treat or
prevent the spread of a pandemic disease, including drugs,
medicines, or vaccines prescribed, dispensed, or administered for
an unapproved use in an attempt to treat or prevent the spread of
the disease or used outside of their normal use in an attempt to
treat or prevent the spread of the disease;
(4) tests to diagnose or determine immunity to a
pandemic disease;
(5) commercial cleaning, sanitizing, or disinfecting
supplies used to prevent the spread of a pandemic disease; or
(6) any component of a product described by this
subsection.
(b) A person who designs, manufactures, sells, or donates a
product described by Subsection (a) during a pandemic emergency is
not liable for personal injury, death, or property damage caused by
the product unless:
(1) the person:
(A) had actual knowledge of a defect in the
product when the product left the person's control; or
(B) acted with actual malice in designing,
manufacturing, selling, or donating the product; and
(2) the product presents an unreasonable risk of
substantial harm to an individual using or exposed to the product.
(c) A person who designs, manufactures, labels, sells, or
donates a product described by Subsection (a) during a pandemic
emergency is not liable for personal injury, death, or property
damage caused by a failure to warn or provide adequate instructions
regarding the use of a product unless:
(1) the person acted with actual malice in failing to
warn or provide adequate instructions regarding the use of the
product; and
(2) the failure to warn or provide adequate
instructions regarding the use of the product presents an
unreasonable risk of substantial harm to an individual using or
exposed to the product.
(d) A person is not liable for personal injury, death, or
property damage caused by or resulting from the person's selection,
distribution, or use of a product described by Subsection (a)
during a pandemic emergency unless:
(1) the person:
(A) had actual knowledge of a defect in the
product when the person selected, distributed, or used the product;
or
(B) acted with actual malice in selecting,
distributing, or using the product; and
(2) the product presents an unreasonable risk of
substantial harm to an individual using or exposed to the product.
Sec. 148.003. LIABILITY FOR CAUSING EXPOSURE TO PANDEMIC
DISEASE. (a) A person is not liable for injury or death caused by
exposing an individual to a pandemic disease during a pandemic
emergency unless the claimant establishes that:
(1) the person who exposed the individual:
(A) knowingly failed to warn the individual of or
remediate a condition that the person knew was likely to result in
the exposure of an individual to the disease, provided that the
person:
(i) had control over the condition;
(ii) knew that the individual was more
likely than not to come into contact with the condition; and
(iii) had a reasonable opportunity and
ability to remediate the condition or warn the individual of the
condition before the individual came into contact with the
condition; or
(B) knowingly failed to implement or comply with
government-promulgated standards, guidance, or protocols intended
to lower the likelihood of exposure to the disease that were
applicable to the person or the person's business, provided that:
(i) the person had a reasonable opportunity
and ability to implement or comply with the standards, guidance, or
protocols;
(ii) the person refused to implement or
comply with or acted with flagrant disregard of the standards,
guidance, or protocols; and
(iii) the government-promulgated
standards, guidance, or protocols that the person failed to
implement or comply with did not, on the date that the individual
was exposed to the disease, conflict with government-promulgated
standards, guidance, or protocols that the person implemented or
complied with; and
(2) reliable scientific evidence shows that the
failure to warn the individual of the condition, remediate the
condition, or implement or comply with the government-promulgated
standards, guidance, or protocols was the cause in fact of the
individual contracting the disease.
(b) Except as provided by Subsection (c), not later than the
120th day after the date a defendant files an answer to a claim to
which Subsection (a) applies, the claimant shall serve on the
defendant:
(1) a report authored by at least one qualified expert
that provides a factual and scientific basis for the assertion that
the defendant's failure to act caused the individual to contract a
pandemic disease; and
(2) a curriculum vitae for each expert whose opinion
is included in the report.
(c) The deadline for serving the report and curriculum vitae
required by Subsection (b) may be extended by written agreement of
the affected parties.
(d) A defendant must file an objection to the sufficiency of
the report and serve the objection on the claimant not later than 21
days after the later of:
(1) the date the report is served on the defendant; or
(2) the date the defendant's answer to the claim is
filed.
(e) If a court determines that a report served under
Subsection (b) does not represent an objective, good faith effort
to provide a factual and scientific basis for the assertion that the
defendant's failure to act caused the injured individual to
contract a pandemic disease, the court may grant the claimant, on
one occasion, a 30-day period to cure any deficiency in the report.
(f) If a sufficient report is not timely served under this
section, the court, on the defendant's motion, shall enter an
order:
(1) dismissing the claim with respect to the
defendant, with prejudice; and
(2) awarding to the defendant reasonable attorney's
fees and costs of court incurred by the defendant in the action.
(g) Nothing in this section shall be construed to mean that
a single expert must address all causation issues with respect to
all defendants.
(h) A report served under this section:
(1) is not admissible in evidence by any party;
(2) may not be used in a deposition, trial, or other
proceeding; and
(3) may not be referred to by any party during the
course of the action, except in a proceeding to determine if a
report is sufficient or timely.
(i) After a claim to which Subsection (a) applies is filed,
all claimants, collectively, may take not more than two depositions
before the expert report is served as required by Subsection (b).
Sec. 148.004. LIABILITY OF EDUCATIONAL INSTITUTIONS FOR
CERTAIN ACTIONS DURING PANDEMIC EMERGENCY. (a) In this section,
"educational institution" means an institution or program that
facilitates learning or the acquisition of knowledge, skills,
values, beliefs, or habits. The term includes public and private
preschools, child-care facilities, primary and secondary schools,
colleges, and universities.
(b) An educational institution is not liable for damages
arising from a cancellation or modification of a course, program,
or activity of the institution if the cancellation or modification
arose during a pandemic emergency and was caused, in whole or in
part, by the emergency.
SECTION 6. (a) For purposes of Section 74.155, Civil
Practice and Remedies Code, as added by this Act, the legislature
finds that:
(1) the widespread effect of Coronavirus Disease 2019
("COVID-19") in this state has resulted in a state of disaster as
declared by the governor under Section 418.014, Government Code;
(2) the frequency and severity of such cases in this
state have severely taxed the physicians and health care providers,
including health care institutions, stressed the state's health
care system, and created shortages of medical staff, therapeutics,
hospital beds, testing equipment, and safety supplies;
(3) physicians and health care providers often have
inadequate facilities to respond to the disaster;
(4) physicians and health care providers often have
inadequate test kits and monitoring devices to properly assess all
those presenting themselves for care or treatment;
(5) because of the number and severity of cases, many
physicians and health care providers in this state have been forced
to prioritize care and treatment;
(6) many physicians and health care providers have
placed themselves, their loved ones, and their livelihoods at risk
by trying to respond to the disaster;
(7) at the current time, there is no certainty as far
as how long this crisis will last;
(8) a pandemic, including the COVID-19 pandemic,
requires an enormous response from governments working in
coordination with physicians and health care providers in the
community;
(9) protecting physicians and health care providers
from unnecessary liability supports their efforts during a
pandemic, including the COVID-19 pandemic;
(10) there is a strong public interest to be served by
this Act; and
(11) while some prior rights will be impaired by this
Act, the impairment is not significant and the interest of
protecting the public and ensuring adequate care vastly outweighs
those rights.
(b) Because of the conditions stated in Subsection (a) of
this section, the purpose of Section 74.155, Civil Practice and
Remedies Code, as added by this Act, is to improve and modify the
system by which health care liability claims are determined in
order to:
(1) promote the public health, safety, and welfare of
all citizens and ensure access to care and treatment during a
pandemic by broadly protecting physicians and health care
providers, including health care institutions, in this state from
liability that may relate to the care or treatment of individuals
associated with a pandemic, including COVID-19;
(2) provide for prompt and swift medical and health
care responses to the citizens of this state suffering from
COVID-19;
(3) recognize that many physicians and health care
providers responding to these situations may not have the full
benefits of the medical devices and facilities they would in
non-disaster situations;
(4) encourage physicians and health care providers
from other states to respond, if necessary, to the COVID-19
disaster in this state as declared by the president of the United
States and by the governor; and
(5) ensure that the focus and resources of physicians
and health care providers in responding to the COVID-19 disaster
are being addressed.
SECTION 7. The purposes of Section 79.0031, Civil Practice
and Remedies Code, as amended by this Act, are to:
(1) provide for prompt and swift medical and health
care responses to individuals in this state suffering from a
man-made or natural disaster, including a state of disaster or
emergency in this state declared by the president of the United
States or a state of disaster declared by the governor under Section
418.014, Government Code;
(2) recognize that many physicians and health care
providers responding to these situations may not have the full
benefits of the medical devices and facilities they would in
non-disaster situations;
(3) encourage physicians and health care providers
from other states to respond, if necessary, to a state of disaster
or emergency in this state declared by the president of the United
States or a state of disaster declared by the governor under Section
418.014, Government Code; and
(4) ensure that the focus and resources of physicians
and health care providers in these situations are being properly
directed after a state of disaster or emergency is declared by the
president of the United States or a state of disaster is declared by
the governor under Section 418.014, Government Code.
SECTION 8. (a) Section 74.155 and Chapter 148, Civil
Practice and Remedies Code, as added by this Act, apply only to an
action commenced on or after March 13, 2020, for which a judgment
has not become final before the effective date of this Act. An
action commenced before March 13, 2020, or an action for which a
judgment has become final before the effective date of this Act is
governed by the law applicable to the action immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
(b) Section 79.0031, Civil Practice and Remedies Code, as
amended by this Act, applies only to an action commenced on or after
the effective date of this Act. An action commenced before the
effective date of this Act is governed by the law applicable to the
action immediately before the effective date of this Act, and that
law is continued in effect for that purpose.
SECTION 9. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2021.
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