Senate Business & Commerce met on March 23 to discuss a number of bills. This report covers discussions concerning SB 6 (Hancock et al.) and SB 875 (Hancock). The committee did not take up SB 398 (Menéndez).

 

This report is intended to give you an overview and highlight of the discussions on the various topics taken up. It is not a verbatim transcript of the discussions but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

Vote Outs

CSSB 196 (Zaffirini) (5-0)

CSSB 860 (Johnson, Paxton) (7-0)

SB 872 (Hancock) (7-0)

SB 873 (Hancock) passes out of committee (7-0)

CSSB 911 (Hancock) passes out of committee (7-0)

 

SB 6 (Hancock | et al.) (CS) Relating to liability for certain claims arising during a pandemic or other disaster or emergency

  • Hancock – CS is based on stakeholder meetings; goal is to protect the well-meaning first responders, nursing homes, religious institutions, higher education institutions, etc. from frivolous lawsuits
  • Bill allows Texas to continue to re-open safely and assures businesses they will not
  • Good Samaritans will not be taken advantage of, but the legislation does not protect bad actors; needed to have made a “good faith” effort to open during the pandemic

 

Brian Jackson, Texas Alliance for Patient Access – For

  • Alliance includes Texas Hospital Association, nursing facilities, etc.
  • Concerning the medical malpractice portion of the bill; extends ER protection of “gross negligence” to those who were treating both COVID-19 patients and those who did not have it
  • Is not different from what is currently in medical malpractice law, but does
  • Provides an anecdote of a hospital who could not transfer a patient, they will be protected because they acted in good faith
  • Hancock – Staffing situations, like if one staff lifted a patient rather than two, then the patient got injured, what happens then?
    • Plaintiff would file lawsuit, and defendant has the option to show that the pandemic impacted their staff; gross negligence would be if they were moved when there was not an emergency
    • Hancock – So you believe this law would still have protections for patients?
    • Yes, would be depending on if they tried to act in the best interest of the patient
  • Whitmire – Is there speculation on your part that this would be abused? Have not heard a lot of concern, has there been an abuse of lawsuits?
    • 9,521 have been filed nationally; 679 have been filed in Texas and 33 are medical liability suits
    • Whitmire – In what jurisdiction?
    • In many jurisdictions, Williamson County, Crockett County, etc.
    • Whitmire – Is speculation that there is going to be a large amount of lawsuits coming forward, and are the lawsuits frivolous? Wonders if it is a real issue
  • Johnson – Any analysis of the pending suits and would they be different if this bill passed?
    • Two of the claims involved in would preclude this; both are having a false COVID-19 test result
  • Menendez – Concerns about if this is lowering the bar on protections for people in nursing homes; facility could rationalize neglect of a patient?
    • That is a legitimate concern, likens it to the current ER statute; would have to prove if the pandemic caused certain conditions
    • Menendez – Could not say that they were just understaffed?
    • Could claim it impacted their staffing, would have to provide sufficient evidence
  • Paxton – In these kinds of cases, could you describe how this would change the burden of proof?
    • Plaintiff usually has the burden of proof, this statute has the “preponderance” of proof
    • Defendant would have to make a showing of how the pandemic impacted them
  • Paxton – Is that different than what is already in existence?
    • Is intended to work like the ER statute; standard to which it is judged is raise to “gross negligence”
  • Hancock – Is not intended to change things, but to work with what is happening in the pandemic to a broad base of entities

 

Dr. Manish Naik, Austin Regional Clinic – For

  • Largest provider of primary services in the Austin area; have been following changing CDC guidelines and did the best we could with information available
  • Doctors should not be held to an unattainable standard; provides an overview of the facts of COVID-19 that changed over time
  • Testing is also an issue and is not always reliable; creates a high degree of uncertainty
  • Access to treatment was often unavailable, but still sorting out which are most effective

 

Jay Harvey, Texas Trial Lawyers Association – Registered Against, but need to change to On

  • Respect and understand what healthcare providers have been through
  • Concerned about the broadness of this, includes those who are not COVID-19 related
  • ER statute is specific, but bill does not say the burden is on in terms of providing proof
  • Need to ensure if the declaration is statewide, not local; standard of care has changed over six months
  • Would like to see obligation to prove this would be on the healthcare provider
  • Hancock – Recommended earlier that it should end on the date the declaration terminates?
    • Changed our recommendations after 180 days the declaration was made

 

George Christian, Texas Civil Justice League – For

  • Intent is for businesses who continued to operate in good faith, they are only liable if they are committing intentional misconduct or if they completely defied health and safety protocols
  • Product liability for manufacturers who made PPE and medical devices, even those not in business model; only liable if they made/distributed a defective product maliciously
  • Menendez – What if a healthcare staff saw an unsafe situation, this legislation would not protect the employer?
    • If the employer has a knowing safety problem and disregard protocols, they will not be protected
    • They had to have known about it, and given the opportunity to fix it

 

Matthew Broaddus, DOW Chemical – For

  • Had to develop health and safety protocols/procedures as workers were deemed essential
  • Created something out of the business model, hand sanitizer and various forms of PPE
  • This bill will focus businesses on getting people back to work and fairly allocates risk among stakeholders involved

 

Jim Perdue, Texas Trail Lawyers – On

  • Are neutral on Section 5, business liability side
  • To Whitmire’s previous question, total filings for COVID-19 cases was 679 in Texas; only 4 are medical liability cases and not sure of any product liability cases
  • Remain committed to working on this bill
  • Hancock – We do not want to protect bad actors, but those who have just cause
    • While there are differences, would like to remain involved

 

Lee Parsley, Texans for Lawsuit Reform – For

  • Creates conditions for employers to bring staff back and customers back
  • Incentivizes employers/frontline workers to follow government standards, and judges them based upon the standards of the time
  • Do not know the extent of the lawsuits that will follow, but is not limited to this pandemic; is the right groundwork for Texas

 

John Monteset, Self– Against

  • Lawyer in many nursing home cases
  • Bill as drafted will effectively give a “free pass” to many cases; Texas is ranked last in nursing home care
  • Language about punitive damage standard, which is impossible to meet; everything in the world has been “impacted by the pandemic”
  • Staffing language in the bill is particularly important in nursing homes
  • Johnson – Do you have language other than “impacted”, notes he does not like that word
    • Should drop “related to or impacted by” and replace with something more direct

 

Glenn Hammer, Texas Association of Business – For

  • Protections provided are important for all entities in this bill; is important to get people back to work and customers back
  • Is not protecting bad actors, but those who acted in “good faith” with the knowledge they had at the time
  • 27 other states have passed similar legislation; bill has broad appeal more than any other legislation

 

Richard Perez, San Antonio Chamber of Commerce – For

  • Is out number one priority in the chamber; growing risk for lawsuits against these entities could prevent students/people getting back to work
  • Hancock – Would the chamber support legislation that would inhibit people from their individual rights?
    • Aim to support legislation where there are safeguards
  • Menendez – If the business is doing their best, they should not face an onslaught of lawsuits?
    • Yes
  • Menendez – Concern is the broadness as businesses could use the pandemic as an excuse for improper case; would not support a bill that shields those kinds of businesses?
    • Correct
  • Hancock – Points Menendez to a section of the bill that discusses how they should have been complying with the regulations at the time

 

Tina Tran, AARP – Against

  • Have a commitment to continue working with Hancock on this bill
  • CS provides broad liability protections, but nursing homes and assisted living facilities are different than the other entities in this bill
  • Patients were left alone during the pandemic without family to protect them
  • Nursing homes face unprecedent challenges, but should be held responsible for the care of their patients
  • Noted nursing homes received resources from the government; if they were understaffed, should have used these resources
  • Menendez – Reading the CS, based on testimony today, appears they have been willing to work with stakeholders; if you have language you feel needs to be changed, please bring it up
    • Will do that

 

Janell Clark, Self – Against

  • Only recourse for those who have been neglected during the pandemic is the courts
  • Provides an overview of the difficulties in caring for their mother who was negligently abused in a nursing home during the pandemic
  • Does not believe nursing homes are understaffed; bill will continue to protect businesses rather than the elderly

 

Patty Ducayet, State Long Term Care Ombudsman – Against

  • Supports the need to protect individual healthcare personnel, concerned about the idea of facilities to not provide good care
  • This will shield businesses from lawsuits, is easy for them to say they are understaffed; they were provided funding and other resources to provide services
  • Concerned facilities will not have to live up to basic requirements; will work to make changes
  • Hancock – Does the bill exempt any requirements?
    • Not a lawyer, but hopes not
    • Hancock – Will show you the page that does not exempt them

CSSB 6 is left pending

 

SB 875 (Hancock) (CS) Relating to prescription drug price disclosure; authorizing a fee; providing an administrative penalty.

  • Hancock – This bill will improve reporting requirements created by HB 2536 from the 86th
  • CS removes requirement of reporting CHIP and Medicaid programs, which created a fiscal note on the bill

 

Blake Hudson, AARP –

  • Was registered to testify, but did not

CSSB 875 is left pending