Missouri Senate

Introduced

LIABILITY OF HEALTH CARE PROVIDERS (SECTION 44.045)

This act provides that any health care provider, as defined in the act, who provides care as necessitated by the COVID-19 pandemic shall not be liable for any civil damages or administrative sanctions for any failure to exercise the skill and learning of an ordinarily careful health care provider in similar circumstances in the delivery or nondelivery of such health care regardless of whether or not the provider is under an official deployment.

However, a health care provider shall be liable for damages for acts or omissions in rendering health care necessitated by an emergency due to COVID-19 when a person has sustained a serious injury as a result of malicious misconduct or conduct that intentionally caused damage to the plaintiff, instead of willful and wanton acts or omissions. Evidence of negligence, including an indifference to or a conscious disregard for the safety of others, shall not constitute malicious misconduct or intentional conduct. A serious injury is defined as a positive diagnosis of an injury or illness resulting in medical treatment or inpatient hospitalization, permanent impairment of a bodily function, or death.

Such limitations on liability shall only apply to acts or omissions that occur during the period of time in which the Governor declared a state of emergency due to COVID-19 and shall not extend to medical treatments or procedures, facility operations, or other services performed that were not related to COVID-19.

CONTRACTS TO LIMIT RECOVERY AND COVENANTS NOT TO EXECUTE (SECTION 537.065)

No claim based on acts or omissions occurring during an emergency due to COVID-19 shall be the subject of any contract to limit recovery or any covenant not to execute. Any such contract or covenant and any arbitration award, judgment, or order applicable to any claim that is the subject of any such contract or covenant shall be null and void as against public policy.

LIABILITY OF COVERED PRODUCTS (SECTION 537.768)

This act provides that any person who designs, manufactures, labels, sells, distributes, or donates a product used in response to an emergency due to COVID-19 shall not be liable in a civil action arising out of the manufacture, design, importation, distribution, packaging, labeling, lease, or sale of such product if the person:

(1) Does not make the covered product in the ordinary course of business;

(2) Does make the covered product in the ordinary course of business and the COVID-19 emergency required the product to be made in a modified manufacturing process that is outside the ordinary course of business; or

(3) Does make the covered product in the ordinary course of business and the product is used in a modified manner in response to the COVID-19 emergency.

Additionally, any person who selects or dispenses a product in response to an emergency due to COVID-19 shall not be liable in any civil action claimed to have arisen from the selection, dispensation, or use of the product.

To file and sustain a claim of use or misuse of a covered product, the plaintiff shall prove by clear and convincing evidence that a person:

(1) Had actual knowledge that the product was defective and that there was a substantial likelihood that the defect would cause the injury that is the basis of the action and the person acted with a deliberate and flagrant disregard for the safety of others; or

(2) Intentionally harmed the plaintiff.

This provision does not create a claim, eliminate a required element of any claim, affect the rights, remedies, or protections under the Workers' Compensation Law, or amend or repeal any other immunity or limitation of liability.

LIABILITY OF PREMISES (SECTION 537.790)

A premises owner, as defined in the act, shall not be liable for any claim or cause of action for damages arising out of or based on exposure or potential exposure to COVID-19 that was sustained on the premises which was related to an emergency due to COVID-19 unless the plaintiff can prove by clear and convincing evidence that the owner intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others. There is a rebuttable presumption of an assumption of risk by a claimant in an exposure claim when a premise owner posts and maintains signs, which contain the warning notice specified in this act, in a clearly visible location at the entrance of the premises.

A premises owner who uses their premises to provide health care services, to provide shelter to health care patients, health care providers, or first responders, or for quarantine purposes in direct response to an emergency due to COVID-19 shall not be liable for an exposure claim on the premises. Additionally, a premises owner shall not be liable for a claim related to conduct intended to reduce an exposure claim if the owner operates in substantial compliance with, or is reasonably consistent with, any federal or state law or regulation, executive order, health order of the Director of the Missouri Department of Health and Senior Services, or rule, regulation, ordinance, or guidance issued by a public health authority that was applicable at the time the conduct or risk allegedly caused harm.

This act is similar to SB 1 (2020 Second Extraordinary Session).

KATIE O'BRIEN