Sec. 74.155.  LIABILITY OF PHYSICIANS, HEALTH CARE PROVIDERS, AND FIRST RESPONDERS DURING PANDEMIC.  (a)  In this section:
(1)  "Disaster declaration" means a declaration of a state of disaster or emergency by the president of the United States applicable to the entire state, a declaration of a state of disaster by the governor under Chapter 418, Government Code, for the entire state, and any amendment, modification, or extension of the declaration.
(2)  "First responder" has the meaning assigned by Section 421.095, Government Code.
(3)  "Pandemic disease" means an infectious disease that spreads to a significant portion of the population of the United States and that poses a substantial risk of a significant number of human fatalities, illnesses, or permanent long-term disabilities.
(b)  Except in a case of reckless conduct or intentional, wilful, or wanton misconduct, a physician, health care provider, or first responder is not liable for an injury, including economic and noneconomic 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 if the physician, health care provider, or first responder proves by a preponderance of the evidence that:
(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
(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.
(c)  A physician, health care provider, or first responder may not use the showing under Subsection (b)(2) as a defense to liability under Subsection (b) for negligent care, treatment, or failure to provide care or treatment 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.
(d)  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 under Subsection (b) includes:
(1)  screening, assessing, diagnosing, or treating an individual who is infected or suspected of being infected with a pandemic disease;
(2)  prescribing, administering, or dispensing a drug or medicine for off-label or investigational use to treat an individual who is infected or suspected of being infected with a pandemic disease;
(3)  diagnosing or treating an individual who is infected or suspected of being infected with a pandemic disease outside the normal area of the physician's or provider's specialty, if any;
(4)  delaying or canceling nonurgent or elective medical, surgical, or dental procedures;
(5)  delaying, canceling, or not accepting in-person appointments for office or clinical visits, diagnostic tests, scheduled treatment, physical or occupational therapy, or any other diagnosis or treatment of an illness or condition not related to a pandemic disease;
(6)  using medical devices, equipment, or supplies outside of their normal use, including using or modifying such devices, equipment, or supplies for an unapproved use, to treat an individual who is infected or suspected of being infected with a pandemic disease;
(7)  conducting tests on or providing treatment to an individual who is infected or suspected of being infected with a pandemic disease outside the premises of a health care facility;
(8)  acts or omissions caused by a lack of personnel or staffing, facilities, medical devices, supplies, or other resources attributable to a pandemic disease that renders a physician, health care provider, or first responder unable to provide the same level or manner of care to any individual that otherwise would have been acquired in the absence of the disease; and
(9)  acts or omissions arising from the use or nonuse of personal protective equipment.
(e)  This section does not alter the scope of practice of a physician, health care provider, or first responder under the laws of this state.
(f)  A defense under this section is in addition to any other defense, immunity, or limitation of liability provided by law.  This section does not constitute a waiver of sovereign immunity of this state or governmental immunity of a political subdivision.
(g)  A physician, health care provider, or first responder who intends to raise a defense under Subsection (b) must provide to a claimant specific facts that support an assertion under Subsection (b)(1) or (2) not later than the later of:
(1)  the 60th day after the date the claimant serves an expert report on the physician, health care provider, or first responder under Section 74.351; or
(2)  the 120th day after the date the physician, health care provider, or first responder files an original answer in the suit.
(h)  This section applies only to a claim arising from care, treatment, or failure to provide care or treatment that occurred during a period beginning on the date that the president of the United States or the governor makes a disaster declaration related to a pandemic disease and ending on the date the declaration terminates.
(i)  This section does not create a civil cause of action.
Added by Acts 2021, 87th Leg., R.S., Ch. 528 (S.B. 6), Sec. 2, eff. June 14, 2021.