Texas 2021 - 87th Regular

Texas Senate Bill SB6 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	S.B. No. 6
	1	+	87R21292 BRG-F
	2	+	By: Hancock, et al. S.B. No. 6
	3	+	(Leach, et al.)
	4	+	Substitute the following for S.B. No. 6: No.
2	5
3	6
	7	+	A BILL TO BE ENTITLED
4	8		AN ACT
5	9		relating to liability for certain claims arising during a pandemic
6	10		or disaster related to a pandemic.
7	11		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	12		SECTION 1. Section 51.014(a), Civil Practice and Remedies
9	13		Code, is amended to read as follows:
10	14		(a) A person may appeal from an interlocutory order of a
11	15		district court, county court at law, statutory probate court, or
12	16		county court that:
13	17		(1) appoints a receiver or trustee;
14	18		(2) overrules a motion to vacate an order that
15	19		appoints a receiver or trustee;
16	20		(3) certifies or refuses to certify a class in a suit
17	21		brought under Rule 42 of the Texas Rules of Civil Procedure;
18	22		(4) grants or refuses a temporary injunction or grants
19	23		or overrules a motion to dissolve a temporary injunction as
20	24		provided by Chapter 65;
21	25		(5) denies a motion for summary judgment that is based
22	26		on an assertion of immunity by an individual who is an officer or
23	27		employee of the state or a political subdivision of the state;
24	28		(6) denies a motion for summary judgment that is based
25	29		in whole or in part upon a claim against or defense by a member of
26	30		the electronic or print media, acting in such capacity, or a person
27	31		whose communication appears in or is published by the electronic or
28	32		print media, arising under the free speech or free press clause of
29	33		the First Amendment to the United States Constitution, or Article
30	34		I, Section 8, of the Texas Constitution, or Chapter 73;
31	35		(7) grants or denies the special appearance of a
32	36		defendant under Rule 120a, Texas Rules of Civil Procedure, except
33	37		in a suit brought under the Family Code;
34	38		(8) grants or denies a plea to the jurisdiction by a
35	39		governmental unit as that term is defined in Section 101.001;
36	40		(9) denies all or part of the relief sought by a motion
37	41		under Section 74.351(b), except that an appeal may not be taken from
38	42		an order granting an extension under Section 74.351;
39	43		(10) grants relief sought by a motion under Section
40	44		74.351(l);
41	45		(11) denies a motion to dismiss filed under Section
42	46		90.007;
43	47		(12) denies a motion to dismiss filed under Section
44	48		27.003;
45	49		(13) denies a motion for summary judgment filed by an
46	50		electric utility regarding liability in a suit subject to Section
47	51		75.0022; [or]
48	52		(14) denies a motion filed by a municipality with a
49	53		population of 500,000 or more in an action filed under Section
50	54		54.012(6) or 214.0012, Local Government Code; or
51	55		(15) overrules an objection filed under Section
52	56		148.003(d) or denies all or part of the relief sought by a motion
53	57		under Section 148.003(f).
54	58		SECTION 2. Subchapter D, Chapter 74, Civil Practice and
55	59		Remedies Code, is amended by adding Section 74.155 to read as
56	60		follows:
57	61		Sec. 74.155. LIABILITY OF PHYSICIANS, HEALTH CARE
58	62		PROVIDERS, AND FIRST RESPONDERS DURING PANDEMIC. (a) In this
59	63		section:
60	64		(1) "Disaster declaration" means a declaration of a
61	65		state of disaster or emergency by the president of the United States
62	66		applicable to the entire state, a declaration of a state of disaster
63	67		by the governor under Chapter 418, Government Code, for the entire
64	68		state, and any amendment, modification, or extension of the
65	69		declaration.
66	70		(2) "First responder" has the meaning assigned by
67	71		Section 421.095, Government Code.
68	72		(3) "Pandemic disease" means an infectious disease
69	73		that spreads to a significant portion of the population of the
70	74		United States and that poses a substantial risk of a significant
71	75		number of human fatalities, illnesses, or permanent long-term
72	76		disabilities.
73	77		(b) Except in a case of reckless conduct or intentional,
74	78		wilful, or wanton misconduct, a physician, health care provider, or
75	79		first responder is not liable for an injury, including economic and
76	80		noneconomic damages, or death arising from care, treatment, or
77	81		failure to provide care or treatment relating to or impacted by a
78	82		pandemic disease or a disaster declaration related to a pandemic
79	83		disease if the physician, health care provider, or first responder
80	84		proves by a preponderance of the evidence that:
81	85		(1) a pandemic disease or disaster declaration related
82	86		to a pandemic disease was a producing cause of the care, treatment,
83	87		or failure to provide care or treatment that allegedly caused the
84	88		injury or death; or
85	89		(2) the individual who suffered injury or death was
86	90		diagnosed or reasonably suspected to be infected with a pandemic
87	91		disease at the time of the care, treatment, or failure to provide
88	92		care or treatment.
89		-	(c) A physician, health care provider, or first responder
90		-	~~may~~ not use the showing under Subsection (b)(2) as a defense to
	93	+	(c) A physician, health care provider, or first responder may
	94	+	not use the showing under Subsection (b)(2) as a defense to
91	95		liability under Subsection (b) for negligent care, treatment, or
92	96		failure to provide care or treatment if a claimant proves by a
93	97		preponderance of the evidence that the respective diagnosis,
94	98		treatment, or reasonable suspicion of infection with a pandemic
95	99		disease at the time of the care, treatment, or failure to provide
96	100		care or treatment was not a producing cause of the individual's
97	101		injury or death.
98	102		(d) Care, treatment, or failure to provide care or treatment
99	103		relating to or impacted by a pandemic disease or a disaster
100	104		declaration related to a pandemic disease under Subsection (b)
101	105		includes:
102	106		(1) screening, assessing, diagnosing, or treating an
103	107		individual who is infected or suspected of being infected with a
104	108		pandemic disease;
105	109		(2) prescribing, administering, or dispensing a drug
106	110		or medicine for off-label or investigational use to treat an
107	111		individual who is infected or suspected of being infected with a
108	112		pandemic disease;
109	113		(3) diagnosing or treating an individual who is
110	114		infected or suspected of being infected with a pandemic disease
111	115		outside the normal area of the physician's or provider's specialty,
112	116		if any;
113	117		(4) delaying or canceling nonurgent or elective
114	118		medical, surgical, or dental procedures;
115	119		(5) delaying, canceling, or not accepting in-person
116	120		appointments for office or clinical visits, diagnostic tests,
117	121		scheduled treatment, physical or occupational therapy, or any other
118	122		diagnosis or treatment of an illness or condition not related to a
119	123		pandemic disease;
120	124		(6) using medical devices, equipment, or supplies
121	125		outside of their normal use, including using or modifying such
122	126		devices, equipment, or supplies for an unapproved use, to treat an
123	127		individual who is infected or suspected of being infected with a
124	128		pandemic disease;
125	129		(7) conducting tests on or providing treatment to an
126	130		individual who is infected or suspected of being infected with a
127	131		pandemic disease outside the premises of a health care facility;
128	132		(8) acts or omissions caused by a lack of personnel or
129	133		staffing, facilities, medical devices, supplies, or other
130	134		resources attributable to a pandemic disease that renders a
131	135		physician, health care provider, or first responder unable to
132	136		provide the same level or manner of care to any individual that
133	137		otherwise would have been acquired in the absence of the disease;
134	138		and
135	139		(9) acts or omissions arising from the use or nonuse of
136	140		personal protective equipment.
137	141		(e) This section does not alter the scope of practice of a
138	142		physician, health care provider, or first responder under the laws
139	143		of this state.
140	144		(f) A defense under this section is in addition to any other
141	145		defense, immunity, or limitation of liability provided by law.
142	146		This section does not constitute a waiver of sovereign immunity of
143	147		this state or governmental immunity of a political subdivision.
144	148		(g) A physician, health care provider, or first responder
145	149		who intends to raise a defense under Subsection (b) must provide to
146	150		a claimant specific facts that support an assertion under
147	151		Subsection (b)(1) or (2) not later than the later of:
148	152		(1) the 60th day after the date the claimant serves an
149	153		expert report on the physician, health care provider, or first
150	154		responder under Section 74.351; or
151	155		(2) the 120th day after the date the physician, health
152	156		care provider, or first responder files an original answer in the
153	157		suit.
154	158		(h) This section applies only to a claim arising from care,
155	159		treatment, or failure to provide care or treatment that occurred
156	160		during a period beginning on the date that the president of the
157	161		United States or the governor makes a disaster declaration related
158	162		to a pandemic disease and ending on the date the declaration
159	163		terminates.
160		-	(i) This section does not create a civil cause of action.
161	164		SECTION 3. Title 6, Civil Practice and Remedies Code, is
162	165		amended by adding Chapter 148 to read as follows:
163	166		CHAPTER 148. LIABILITY DURING PANDEMIC EMERGENCY
164	167		Sec. 148.001. DEFINITIONS. In this chapter:
165	168		(1) "Pandemic disease" has the meaning assigned by
166	169		Section 74.155.
167	170		(2) "Pandemic emergency" means a state of disaster
168	171		declared by the governor under Chapter 418, Government Code, in
169	172		response to a pandemic disease.
170	173		Sec. 148.002. PRODUCTS LIABILITY ACTIONS RELATED TO
171	174		PANDEMIC EMERGENCY. (a) This section applies only to the following
172	175		products:
173	176		(1) clothing or equipment worn to minimize exposure to
174	177		hazards of a pandemic disease that cause injury or illness;
175	178		(2) medical devices, equipment, and supplies used
176	179		during a pandemic emergency or to treat individuals infected or
177	180		suspected to be infected with a pandemic disease, including
178	181		devices, equipment, and supplies used or modified for an unapproved
179	182		use to treat or prevent the spread of the disease or used outside of
180	183		their normal use to treat or prevent the spread of the disease;
181	184		(3) drugs, medicines, or vaccines used to treat or
182	185		prevent the spread of a pandemic disease, including drugs,
183	186		medicines, or vaccines prescribed, dispensed, or administered for
184	187		an unapproved use in an attempt to treat or prevent the spread of
185	188		the disease or used outside of their normal use in an attempt to
186	189		treat or prevent the spread of the disease;
187	190		(4) tests to diagnose or determine immunity to a
188	191		pandemic disease;
189	192		(5) commercial cleaning, sanitizing, or disinfecting
190	193		supplies used to prevent the spread of a pandemic disease; or
191	194		(6) any component of a product described by this
192	195		subsection.
193	196		(b) A person who designs, manufactures, sells, or donates a
194	197		product described by Subsection (a) during a pandemic emergency is
195	198		not liable for personal injury, death, or property damage caused by
196	199		the product unless:
197	200		(1) the person:
198	201		(A) had actual knowledge of a defect in the
199	202		product when the product left the person's control; or
200	203		(B) acted with actual malice in designing,
201	204		manufacturing, selling, or donating the product; and
202	205		(2) the product presents an unreasonable risk of
203	206		substantial harm to an individual using or exposed to the product.
204	207		(c) A person who designs, manufactures, labels, sells, or
205	208		donates a product described by Subsection (a) during a pandemic
206	209		emergency is not liable for personal injury, death, or property
207	210		damage caused by a failure to warn or provide adequate instructions
208	211		regarding the use of a product unless:
209	212		(1) the person acted with actual malice in failing to
210	213		warn or provide adequate instructions regarding the use of the
211	214		product; and
212	215		(2) the failure to warn or provide adequate
213	216		instructions regarding the use of the product presents an
214	217		unreasonable risk of substantial harm to an individual using or
215	218		exposed to the product.
216	219		(d) A person is not liable for personal injury, death, or
217	220		property damage caused by or resulting from the person's selection,
218	221		distribution, or use of a product described by Subsection (a)
219	222		during a pandemic emergency unless:
220	223		(1) the person:
221	224		(A) had actual knowledge of a defect in the
222	225		product when the person selected, distributed, or used the product;
223	226		or
224	227		(B) acted with actual malice in selecting,
225	228		distributing, or using the product; and
226	229		(2) the product presents an unreasonable risk of
227	230		substantial harm to an individual using or exposed to the product.
228	231		Sec. 148.003. LIABILITY FOR CAUSING EXPOSURE TO PANDEMIC
229	232		DISEASE. (a) A person is not liable for injury or death caused by
230	233		exposing an individual to a pandemic disease during a pandemic
231	234		emergency unless the claimant establishes that:
232	235		(1) the person who exposed the individual:
233	236		(A) knowingly failed to warn the individual of or
234	237		remediate a condition that the person knew was likely to result in
235	238		the exposure of an individual to the disease, provided that the
236	239		person:
237	240		(i) had control over the condition;
238	241		(ii) knew that the individual was more
239	242		likely than not to come into contact with the condition; and
240	243		(iii) had a reasonable opportunity and
241	244		ability to remediate the condition or warn the individual of the
242	245		condition before the individual came into contact with the
243	246		condition; or
244	247		(B) knowingly failed to implement or comply with
245	248		government-promulgated standards, guidance, or protocols intended
246	249		to lower the likelihood of exposure to the disease that were
247	250		applicable to the person or the person's business, provided that:
248	251		(i) the person had a reasonable opportunity
249	252		and ability to implement or comply with the standards, guidance, or
250	253		protocols;
251	254		(ii) the person refused to implement or
252	255		comply with or acted with flagrant disregard of the standards,
253	256		guidance, or protocols; and
254	257		(iii) the government-promulgated
255	258		standards, guidance, or protocols that the person failed to
256	259		implement or comply with did not, on the date that the individual
257	260		was exposed to the disease, conflict with government-promulgated
258	261		standards, guidance, or protocols that the person implemented or
259	262		complied with; and
260	263		(2) reliable scientific evidence shows that the
261	264		failure to warn the individual of the condition, remediate the
262	265		condition, or implement or comply with the government-promulgated
263	266		standards, guidance, or protocols was the cause in fact of the
264	267		individual contracting the disease.
265	268		(b) Except as provided by Subsection (c), not later than the
266	269		120th day after the date a defendant files an answer to a claim to
267	270		which Subsection (a) applies, the claimant shall serve on the
268	271		defendant:
269	272		(1) a report authored by at least one qualified expert
270	273		that provides a factual and scientific basis for the assertion that
271	274		the defendant's failure to act caused the individual to contract a
272	275		pandemic disease; and
273	276		(2) a curriculum vitae for each expert whose opinion
274	277		is included in the report.
275	278		(c) The deadline for serving the report and curriculum vitae
276	279		required by Subsection (b) may be extended by written agreement of
277	280		the affected parties.
278	281		(d) A defendant must file an objection to the sufficiency of
279	282		the report and serve the objection on the claimant not later than 21
280	283		days after the later of:
281	284		(1) the date the report is served on the defendant; or
282	285		(2) the date the defendant's answer to the claim is
283	286		filed.
284	287		(e) If a court determines that a report served under
285	288		Subsection (b) does not represent an objective, good faith effort
286	289		to provide a factual and scientific basis for the assertion that the
287	290		defendant's failure to act caused the injured individual to
288	291		contract a pandemic disease, the court may grant the claimant, on
289	292		one occasion, a 30-day period to cure any deficiency in the report.
290	293		(f) If a sufficient report is not timely served under this
291	294		section, the court, on the defendant's motion, shall enter an
292	295		order:
293	296		(1) dismissing the claim with respect to the
294	297		defendant, with prejudice; and
295	298		(2) awarding to the defendant reasonable attorney's
296	299		fees and costs of court incurred by the defendant in the action.
297	300		(g) Nothing in this section shall be construed to mean that
298	301		a single expert must address all causation issues with respect to
299	302		all defendants.
300	303		(h) A report served under this section:
301	304		(1) is not admissible in evidence by any party;
302	305		(2) may not be used in a deposition, trial, or other
303	306		proceeding; and
304	307		(3) may not be referred to by any party during the
305	308		course of the action, except in a proceeding to determine if a
306	309		report is sufficient or timely.
307	310		(i) After a claim to which Subsection (a) applies is filed,
308	311		all claimants, collectively, may take not more than two depositions
309	312		before the expert report is served as required by Subsection (b).
310	313		(j) For purposes of Subsection (a)(1)(B), if an order, rule,
311	314		or authoritative declaration promulgated by the governor, the
312	315		legislature, a state agency, or a local governmental entity with
313	316		jurisdiction over the person conflicts with a different
314	317		government-promulgated standard, guideline, or protocol, a person
315	318		may not be considered to fail to implement or comply with the
316	319		government-promulgated standard, guideline, or protocol if, at the
317	320		time of the injured individual's exposure to the pandemic disease
318	321		during a pandemic emergency, the person is making a good faith
319	322		effort to substantially comply with at least one conflicting order,
320	323		rule, or declaration.
321	324		Sec. 148.004. LIABILITY OF EDUCATIONAL INSTITUTIONS FOR
322	325		CERTAIN ACTIONS DURING PANDEMIC EMERGENCY. (a) In this section,
323	326		"educational institution" means an institution or program that
324	327		facilitates learning or the acquisition of knowledge, skills,
325	328		values, beliefs, or habits. The term includes:
326	329		(1) a public or private preschool, child-care
327	330		facility, primary or secondary school, college, or university;
328	331		(2) an institution of higher education, as that term
329	332		is defined by Section 61.003, Education Code; and
330	333		(3) a private or independent institution of higher
331	334		education, as that term is defined by Section 61.003, Education
332	335		Code.
333	336		(b) An educational institution is not liable for damages or
334	337		equitable monetary relief arising from a cancellation or
335	338		modification of a course, program, or activity of the institution
336	339		if the cancellation or modification arose during a pandemic
337	340		emergency and was caused, in whole or in part, by the emergency.
338		-	Sec. 148.005. NO CIVIL CAUSE OF ACTION. This chapter does
339		-	not create a civil cause of action.
340	341		SECTION 4. (a) For purposes of Section 74.155, Civil
341	342		Practice and Remedies Code, as added by this Act, the legislature
342	343		finds that:
343	344		(1) the widespread effect of Coronavirus Disease 2019
344	345		("COVID-19") in this state has resulted in a state of disaster as
345	346		declared by the governor under Section 418.014, Government Code;
346	347		(2) the frequency and severity of such cases in this
347	348		state have severely taxed the physicians and health care providers,
348	349		including health care institutions, stressed the state's health
349	350		care system, and created shortages of medical staff, therapeutics,
350	351		hospital beds, testing equipment, and safety supplies;
351	352		(3) physicians and health care providers often have
352	353		inadequate facilities to respond to the disaster;
353	354		(4) physicians and health care providers often have
354	355		inadequate test kits and monitoring devices to properly assess all
355	356		those presenting themselves for care or treatment;
356	357		(5) because of the number and severity of cases, many
357	358		physicians and health care providers in this state have been forced
358	359		to prioritize care and treatment;
359	360		(6) many physicians and health care providers have
360	361		placed themselves, their loved ones, and their livelihoods at risk
361	362		by trying to respond to the disaster;
362	363		(7) at the current time, there is no certainty as far
363	364		as how long this crisis will last;
364	365		(8) a pandemic, including the COVID-19 pandemic,
365	366		requires an enormous response from governments working in
366	367		coordination with physicians and health care providers in the
367	368		community;
368	369		(9) protecting physicians and health care providers
369	370		from unnecessary liability supports their efforts during a
370	371		pandemic, including the COVID-19 pandemic; and
371	372		(10) there is a strong public interest to be served by
372	373		this Act.
373	374		(b) Because of the conditions stated in Subsection (a) of
374	375		this section, the purpose of Section 74.155, Civil Practice and
375	376		Remedies Code, as added by this Act, is to improve and modify the
376	377		system by which health care liability claims are determined in
377	378		order to:
378	379		(1) promote the public health, safety, and welfare of
379	380		all citizens and ensure access to care and treatment during a
380	381		pandemic by broadly protecting physicians and health care
381	382		providers, including health care institutions, in this state from
382	383		liability that may relate to the care or treatment of individuals
383	384		associated with a pandemic, including COVID-19;
384	385		(2) provide for prompt and swift medical and health
385	386		care responses to the citizens of this state suffering from
386	387		COVID-19;
387	388		(3) recognize that many physicians and health care
388	389		providers responding to these situations may not have the full
389	390		benefits of the medical devices and facilities they would in
390	391		non-disaster situations;
391	392		(4) encourage physicians and health care providers
392	393		from other states to respond, if necessary, to the COVID-19
393	394		disaster in this state as declared by the president of the United
394	395		States and by the governor; and
395	396		(5) ensure that the focus and resources of physicians
396	397		and health care providers in responding to the COVID-19 disaster
397	398		are being addressed.
398	399		(c) For purposes of Section 74.155 and Chapter 148, Civil
399	400		Practice and Remedies Code, as added by this Act, the legislature
400	401		finds that while some settled expectations regarding claims to
401	402		which this Act applies may be impaired by this Act, the Act serves a
402	403		compelling public interest in establishing certain procedures and
403	404		standards for addressing potential claims against individuals and
404	405		entities faced with an unprecedented public health emergency that
405	406		has had severe and adverse impacts on both the health and safety of
406	407		individuals and the ordinary functioning of governmental entities,
407	408		the judicial system, the health care delivery system, educational
408	409		and religious institutions, businesses, nonprofit entities, and
409	410		others whose daily lives have been upended by the emergency.
410	411		SECTION 5. (a) Section 74.155 and Chapter 148, Civil
411	412		Practice and Remedies Code, as added by this Act, apply only to an
412	413		action commenced on or after March 13, 2020, for which a judgment
413	414		has not become final before the effective date of this Act. An
414	415		action commenced before March 13, 2020, or an action for which a
415	416		judgment has become final before the effective date of this Act is
416	417		governed by the law applicable to the action immediately before the
417	418		effective date of this Act, and that law is continued in effect for
418	419		that purpose.
419	420		(b) In an action commenced before the effective date of this
420	421		Act and to which Section 74.155, Civil Practice and Remedies Code,
421	422		as added by this Act, applies, a physician, health care provider, or
422	423		first responder who intends to raise a defense under Subsection (b)
423	424		of that section must provide to the claimant specific facts
424	425		required under Subsection (g) of that section not later than the
425	426		later of:
426	427		(1) the 60th day after the effective date of this Act;
427	428		(2) the 120th day after the date the physician, health
428	429		care provider, or first responder files an original answer in the
429	430		suit; or
430	431		(3) the 60th day after the date the claimant serves an
431	432		expert report on the physician, health care provider, or first
432	433		responder under Section 74.351, Civil Practice and Remedies Code.
433	434		SECTION 6. This Act takes effect immediately if it receives
434	435		a vote of two-thirds of all the members elected to each house, as
435	436		provided by Section 39, Article III, Texas Constitution. If this
436	437		Act does not receive the vote necessary for immediate effect, this
437	438		Act takes effect September 1, 2021.
438		-	______________________________ ______________________________
439		-	President of the Senate Speaker of the House
440		-	I hereby certify that S.B. No. 6 passed the Senate on
441		-	April 8, 2021, by the following vote: Yeas 29, Nays 1; and that
442		-	the Senate concurred in House amendments on May 28, 2021, by the
443		-	following vote: Yeas 30, Nays 1.
444		-	______________________________
445		-	Secretary of the Senate
446		-	I hereby certify that S.B. No. 6 passed the House, with
447		-	amendments, on May 24, 2021, by the following vote: Yeas 133,
448		-	Nays 10, one present not voting.
449		-	______________________________
450		-	Chief Clerk of the House
451		-	Approved:
452		-	______________________________
453		-	Date
454		-	______________________________
455		-	Governor