87R21292 BRG-F
 
  By: Hancock, et al. S.B. No. 6
 
  (Leach, et al.)
 
  Substitute the following for S.B. No. 6:  No.
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to liability for certain claims arising during a pandemic
  or disaster related to a pandemic.
         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) A physician, health care provider, or first responder may
  not use the showing under Subsection (b)(2) as a defense to
  liability under Subsection (b) for negligent care, treatment, or
  failure to provide care or treatment if a claimant proves by a
  preponderance of the evidence that the respective diagnosis,
  treatment, or reasonable suspicion of infection with a pandemic
  disease at the time of the care, treatment, or failure to provide
  care or treatment was not a producing cause of the individual's
  injury or death.
         (d)  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.
         (e)  This section does not alter the scope of practice of a
  physician, health care provider, or first responder under the laws
  of this state.
         (f)  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.
         (g)  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.
         (h)  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.  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).
         (j)  For purposes of Subsection (a)(1)(B), if an order, rule,
  or authoritative declaration promulgated by the governor, the
  legislature, a state agency, or a local governmental entity with
  jurisdiction over the person conflicts with a different
  government-promulgated standard, guideline, or protocol, a person
  may not be considered to fail to implement or comply with the
  government-promulgated standard, guideline, or protocol if, at the
  time of the injured individual's exposure to the pandemic disease
  during a pandemic emergency, the person is making a good faith
  effort to substantially comply with at least one conflicting order,
  rule, or declaration.
         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:
               (1)  a public or private preschool, child-care
  facility, primary or secondary school, college, or university;
               (2)  an institution of higher education, as that term
  is defined by Section 61.003, Education Code; and
               (3)  a private or independent institution of higher
  education, as that term is defined by Section 61.003, Education
  Code.
         (b)  An educational institution is not liable for damages or
  equitable monetary relief 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 4.  (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; and
               (10)  there is a strong public interest to be served by
  this Act.
         (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.
         (c)  For purposes of Section 74.155 and Chapter 148, Civil
  Practice and Remedies Code, as added by this Act, the legislature
  finds that while some settled expectations regarding claims to
  which this Act applies may be impaired by this Act, the Act serves a
  compelling public interest in establishing certain procedures and
  standards for addressing potential claims against individuals and
  entities faced with an unprecedented public health emergency that
  has had severe and adverse impacts on both the health and safety of
  individuals and the ordinary functioning of governmental entities,
  the judicial system, the health care delivery system, educational
  and religious institutions, businesses, nonprofit entities, and
  others whose daily lives have been upended by the emergency.
         SECTION 5.  (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)  In an action commenced before the effective date of this
  Act and to which Section 74.155, Civil Practice and Remedies Code,
  as added by this Act, applies, a physician, health care provider, or
  first responder who intends to raise a defense under Subsection (b)
  of that section must provide to the claimant specific facts
  required under Subsection (g) of that section not later than the
  later of:
               (1)  the 60th day after the effective date of this Act;
               (2)  the 120th day after the date the physician, health
  care provider, or first responder files an original answer in the
  suit; or
               (3)  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, Civil Practice and Remedies Code.
         SECTION 6.  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.