House passes Pandemic Liability Protection Act 133-10

-- from Texas Alliance for Patient Access --

Our priority legislation, SB 6, the Pandemic Liability Protection Act, passed on third reading in the House on Monday and now returns to the Senate for action on the changes made to the bill in the House. If the Senate approves the amendments made in the House, then the bill will head to the Governor for signature. Because it cleared both chambers by a supermajority, SB 6 becomes law upon the Governor’s signature.
 
SB 6 provides liability protection for doctors, healthcare providers, and healthcare facilities during the declared COVID-19 public health emergency. 
 
All core elements of our bill remain intact. Protections apply to care rendered to known or suspected COVID patients and to care affected by the pandemic. Conduct is governed by gross negligence or a willful and wanton standard. The statute protects healthcare providers who operated in good faith. Liability protections are retroactive to March 13, 2020, when Governor Abbott declared COVID a public health emergency. Legislative findings were added to counter the anticipated constitutional challenges to the retroactivity of the bill.

The willful and wanton standard in the Pandemic Liability Protection Bill mirrors the standard that applies in Good Samaritan law and in Texas’ emergency care protections which have been in force in our state since 2003.

The COVID bill does not provide unchecked liability protection. It simply broadens the current emergency room standard to COVID patients and situations where the defendant proves that COVID was the producing cause of the care rendered.

SB 6 does not protect bad actors who are grossly negligent, engage in willful misconduct or are consciously indifferent to their patient’s welfare and safety. Instead, it protects all those who put their safety at risk when working in a healthcare setting if they make a good faith effort to provide appropriate medical care.

The higher gross negligence standard is triggered only when the pandemic disease was a producing cause of the injury or death. Conversely, the burden falls on the plaintiff to disprove the defense by a preponderance of the evidence. Specifically, they must show that the diagnosis or treatment of the pandemic disease or reasonable suspicion of infection was not a producing cause of the injury or death.
 
The triggered protections for future man-made or natural disasters were removed in the House committee. However, SB 6 immediately triggers protections for future pandemics upon the declaration of the Governor or President of the United States.
 
Our COVID liability protections are part of a broader pandemic omnibus bill that safeguards businesses, schools, churches, and non-profits, who made a good faith effort to abide by a set of local, state, or federal guidance during the COVID outbreak.
 
In January, Governor Abbott declared pandemic liability protection an emergency, giving the bill priority status. The Lieutenant Governor and House Speaker signaled their support early. Even still, we had to fend off repeated attempts to water down the protections and single out particular healthcare providers.
 
Opponents asserted that the gross negligence standard should apply when the lawsuit is filed instead of when the alleged gross negligence occurred. The proposed revision would have had the result of delaying a lawsuit until after the Governor lifted his emergency declaration, and in so doing, nix the gross negligence protections from any COVID suit. Nursing home advocates made several efforts to exclude long-term care facilities from liability protections.  Last-minute efforts were also made to limit the time frame of the protections specifically for nursing and assisted living facilities. None of the challenges or amendments succeeded. 
 
Even the day the bill reached the House floor, Chairman Leach was fighting off proposed amendments to water down the bill’s effectiveness. Ultimately, SB 6 passed the House with the language that emerged from House Judiciary and Civil Jurisprudence Committee with the lone exception of an amendment that clarifies the bill does not create a new cause of action.
 
Congratulations to the many people who made this victory possible, starting with Senate and House sponsors Kelly Hancock and Jeff Leach. These men had an open-door policy, sat through many negotiating sessions, made thoughtful edits, and stuck to their principles in delivering a thoughtful and effective piece of legislation. 
 
Thank you to the legal teams from TMA, THA, and Texas Civil Justice League for helping us craft the bill and reach a consensus. Kudos to TAPA General Counsel Brian Jackson, who helped craft, fine-tune, and negotiate the bill and serve as our principal resource witness. 
 
Thank you to our advocate Brian Yarbrough for working with the authors and shepherding the bill through the legislative process and to Billy Phenix for working to ensure conflicting liability language in other bills did not become Texas law. 
 
Thank you for the input from our many witnesses, from the nursing home community, and from TAPA board member Dr. Liam Fry, who explained the need for and real-life implications of our COVID bill in committee testimony. 
 
And lastly, thank you to our board members and stakeholders who guided us and trusted us to navigate a contentious legislative process. 
 
We anxiously await the final enactment of the 2021 Pandemic Liability Protection Act.