When it comes to laws that make it harder to sue for COVID-19 exposure, Texas lawmakers will have the opportunity to join other states and the federal government during this year’s legislature.
Behind the scenes at the legislature, a coalition of crime reform lobbyists and business associations are putting the finishing touches on a bill to protect healthcare providers, many types of businesses, manufacturers and educational institutions from lawsuits over the ongoing pandemic.
The move is likely to be pushed back by plaintiffs’ attorneys, who say there is no spate of COVID-19 lawsuits. Plus, the chances of getting passed are less than in other years as the Texan legislature faces a number of pandemic emergencies that have priority while dealing with infection control measures that could slow down bills as the legislative process progresses.
Georg Christian. Courtesy photo
“We don’t want a major public health and economic crisis to trigger litigation,” said George Christian, senior counsel for the Texas Civil Justice League, a coalition of business, trade, professional and health associations citing this bill as a top item. “We’ve got a lot of interest from the leadership and I have a feeling we’re going to get a pretty good run.”
Christian said the league is now finalizing a bill and has already found a sponsor – Sen. Kelly Hancock, R-North Richland Hills – to submit when it is ready. No one in Hancock’s office responded to an email asking for comment before the deadline.
He noted that the bill has four main components: healthcare liability coverage, liability coverage for many businesses, protection for manufacturers who make COVID-19-related products, and protection for educational institutions close to personal learning.
What’s in the bill?
George Christian, senior counsel of the Texas Civil Justice League, said the league is finalizing a bill for submission by Senator Kelly Hancock, R-North Richland Hills. Christian explained the contents of the bill to Texas Lawyer.
In the healthcare sector, the bill would extend the standard of care of the Texas Emergency Room Act to include providers treating COVID-19 patients. The bill sets the same standard for cases where a patient’s non-coronavirus treatment or a patient’s procedure is delayed due to disruptions from the pandemic, Christian said.
According to the public liability section of the bill, a company would receive protection if an employee or customer claimed a COVID-19 breach off the premises. A company would have to act pretty egregious to be liable and would get protection as long as it tries to follow safety precautions, he said.
Manufacturers who make items such as ventilators, personal protective equipment, vaccines or treatments for the coronavirus would be covered in the bill, “unless you knew something was wrong with it and exhibited it anyway,” Christian said.
The part of the bill that applies to educational institutions would discourage them from facing lawsuits from students who wanted tuition reimbursement because the school was closed for face-to-face learning, he added.
The bill includes several other provisions that would ensure that contracts suspended during the pandemic qualify for a force majeure situation and would require the Texas Supreme Court’s urgent orders to apply equally to all types of cases, including eviction cases – what Christian said that some of the district’s justices of the peace did not allow it to be submitted at all.
Texans for Lawsuit Reform supports the upcoming bill. The group’s general counsel, Lee Parsley, did not respond to a message asking for comment before the deadline.
“Texas law should provide that a company that works in good faith to comply with state and federal security protocols is not liable for a customer or employee who becomes infected with COVID-19,” it said an email from Lucy Nashed, spokesperson for Texans for Lawsuit Reformsuit. “Liability should only arise if the company acted with gross negligence or intent when it exposed the employee or customer to COVID-19 and the employee or customer suffers from a significant illness.”
She added that at the beginning of a COVID-19 lawsuit, a plaintiff must provide valid scientific evidence that the defendant caused the disease, or the case should be dismissed.
Slater Elza, president of the Texas Association of Defense Counsel, wrote in an email that Christian is serving as the association’s lobbyist. He declined further comments on the COVID-19 Liability Act.
The law is likely to be pushed back by plaintiffs’ attorneys who may argue that the law is not required.
Texas Trial Lawyers Association President Jim Perdue Jr. said in a statement that the bill has not yet been filed and that he needs to review certain proposals.
“COVID-related case applications against companies have been limited and limited in scope. In fact, our members report many more inquiries related to insurance companies rejecting business owner claims for pandemic losses that seem to be getting out of hand, ”Perdue said.
Dallas attorney Quentin Brogdon said there won’t be a spate of litigation over COVID-19. His law firm, Crain Brogdon Rogers, doesn’t get many calls from potential plaintiffs. Of the dozen or so calls he handled, Brogdon only accepted two – from families of nursing home workers who contracted the coronavirus and died while working.
Quentin Brogdon. (Courtesy photo)
“There is no incentive for lawyers to bring up un-winning cases. The jury will ultimately have to weigh the behavior, and in any case of COVID exposure, proving the cause will be no easy task, ”Brogdon said. “We are looking for evidence of clear exposure and a clear disregard for basic protective measures to prevent infection with COVID.”
Christian, the Civil Justice League’s lobbyist for the bill, said he agreed that it was unlikely that plaintiffs would file a spate of COVID lawsuits. However, Christian added that he sees potential and has concerns that some types of businesses – such as long-term caregivers, nursing homes, and meat packers – could be targeted by litigation for exposure to COVID-19.
“There are certain places where this could work itself out,” he said. “The attitude of the people on our side and those in the legislature who want to do it is: ‘We’ll close the door before something happens.'”
But Brogdon said the bill could do harm – and not just from defeatable plaintiffs, even those of merit. The bill could hurt any ordinary Texan, he said.
“The reason blanket immunity in any arena, including COVID, is a bad idea is that it gives businesses an incentive not to take appropriate steps to protect patients, nursing home residents, workers and the public,” Brogdon said . “Blanket immunity may affect all of us by encouraging insecure businesses to stay open, and it indiscriminately cuts off the rights of even those with legitimate claims.”