Texas Enacts Law Providing COVID-19 Civil Immunity to Physicians, Health Care Providers, and First Responders

Author: Eve Soldatos, Esq.

On June 14, 2021, Governor Abbott signed Senate Bill 6 into law, amending the Civil Practice and Remedies Code by adding Section 74.155. The new section, 74.155(b) states that except in cases of reckless conduct or intentional, willful, or wanton misconduct, a physician, health care provider or first responder is not liable for an injury, including economic and non-economic 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. In order for immunity to apply, the physician, health care provider, or first responder must prove by a preponderance of the evidence that: 

(b)(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

(b)(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. A physician, health care provider, or first responder may not use subsection (b)(2) as a defense for liability 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.

Additionally, under 74.155(g), a physician, health care provider, or first responder who raises a defense under the immunity provision outlined above must provide to the claimant specific facts that support an assertion under subsection (b)(1) and (b)(2) not later than the later of:

1. 1. The 60th day after the date the claimant serves an expert report on the physician, health care provider, or first responder under Section 74.350; or
   2. The 120th day after the date that physician, health care provider, or first responder files an original answer in the suit.

This section only applies to an action commenced on or after March 13, 2020, for which a judgment has not become final before the effective date of the Act. An action commenced before March 13, 2020, or an action for which a judgment has become final before the effective date of the Act is governed by the law applicable to the action immediately before the effective date of the Act, June 14, 2021. The Act applies retroactively to claims that occurred during the period beginning on the date that the President of the United States or Governor of Texas made a disaster declaration related to a pandemic disease, and expires on the date that the disaster declaration was terminated by the President of the United States or Governor of Texas.

Finally, “health care provider” is defined to include assisted living facilities and nursing homes.