By: Hancock, et al. S.B. No. 6     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) 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.  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.  Sections 79.0031(a), (b), and (c), Civil   Practice and Remedies Code, are amended 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).          (j)  If, at the time of the injury or death caused by exposing   an individual to a pandemic disease during a pandemic emergency, an   order, rule, or declaration of the governor or an agency of the   state establishing or applying standards, guidelines, or protocols   related to a pandemic disease does not apply to a person under this   section, and no other standards, guidelines, or protocols   applicable to the person have been promulgated and adopted by a   local governmental entity with jurisdiction over the person, the   person is deemed to be in compliance with government-promulgated   standards, guidelines, and protocols for purposes of Subsection   (a)(1)(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:                (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   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.