'Must-Have' Texas COVID-19 Liability Bill Faces Little Dissent

By Katie Buehler
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Law360 (April 14, 2021, 6:23 PM EDT) -- Texas lawmakers on Wednesday reviewed a bill that would provide expanded liability protection to health care facilities and workers, first responders, businesses and educational institutions in coronavirus-related lawsuits, a widely supported initiative that has already been approved by the state Senate.

The legislation, H.B. 3659, would allow defendants to dismiss certain lawsuits after proving the pandemic was a producing cause of the alleged injury, while keeping alive lawsuits based on the defendants' actual malice or reckless and intentional conduct. If passed, the bill would act retroactively and potentially apply to lawsuits filed since Gov. Greg Abbott declared the pandemic a state disaster on March 13, 2020.

State Rep. Jeff Leach, R-Allen, the bill's author and chair of the House's Judiciary & Civil Jurisprudence Committee, said Wednesday that the measure is meant to protect well-meaning Texans from frivolous lawsuits related to COVID-19. He added that the bill will also help Texas' economy recover from the ongoing pandemic.

"It will bolster our economy by giving our businesses the assurance that they won't have to spend their resources on fighting frivolous lawsuits," Leach said.

At Wednesday's public hearing, the Judiciary & Civil Jurisprudence Committee heard from several members of the health care and business communities in favor of the bill, saying health care providers and businesses already have enough COVID-19-related headaches to deal with.

"It's not a nice-to-have, it's a must-have," said Glenn Hamer, president and CEO of the Texas Association of Business.

The full Texas Senate approved S.B. 6, an identical bill, 29-1 on April 8.

Under H.B. 3659, physicians, health care providers and first responders cannot be held liable for an injury or death if they can prove by a preponderance of the evidence that the coronavirus was "a producing cause of the care, treatment, or failure to provide care or treatment that allegedly caused the injury or death" or if the individual who suffered the injury or death was diagnosed or reasonably suspected to be infected with the coronavirus.

The bill also provides liability protection to companies who design, manufacture, sell or donate personal protective equipment, cleaning supplies and medicines and vaccines related to the pandemic, unless a plaintiff can prove the company had actual knowledge of a product defect or acted with actual malice in designing the product.

Employers and businesses would be protected from lawsuits alleging exposure to the disease unless a plaintiff can establish that the employer or business knowingly failed to warn the individual of or remediate the condition, or knowingly failed to implement and comply with government guidance to lower the risk of contracting COVID-19.

Additionally, education institutions wouldn't be liable for canceling or modifying their class schedules and programs due to the pandemic.

Texas Alliance for Patient Access general counsel Brian Jackson said the bill recognizes that health care workers have been in an emergency situation every day for the past year and expands traditional emergency room standards for negligence claims to doctors treating COVID-19 patients.

"Please protect these heroes by applying the emergency room standard," he said.

However, several witnesses urged the committee to reconsider the bill, arguing that nursing homes should be exempt from the expanded liability protection. The committee heard testimony from several family members of nursing home residents and their advocates who said the nursing homes would exploit the new bill to further escape liability.

John Modesett, a health care and personal injury lawyer in Austin, said the bill "gives a pass to bad actors." For example, a nursing home that purposefully understaffed its facility could claim the staffing shortage was caused by the pandemic and dodge liability suits for injuries and deaths of residents, he said.

"This is a free pass for people who don't need it," Modesett said. "We need to protect the elderly."

The committee left the bill pending to make amendments and proposed changes including concerns voiced by state Rep. Julie Johnson, D-Carrollton, that the bill's vague reference to disaster declarations would allow defendants to use its provided defenses during natural disasters that occur yearly, such as hurricanes, instead of being limited to pandemics.

According to data collected by Hunton Andrews Kurth LLP, 697 COVID-19-related lawsuits have been filed in Texas since the beginning of the pandemic. The largest group of those cases fall under the labor and employment category, with 115 lawsuits alleging lack of proper personal protective equipment, discrimination, unlawful termination, retaliation and other claims. Only four cases allege medical malpractice, according to the data.

--Editing by Ellen Johnson.

For a reprint of this article, please contact reprints@law360.com.

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