Senate File 2338 H-8173 Amend Senate File 2338, as passed by the Senate, as follows: 1 1. Page 1, by striking lines 1 through 14 and inserting: 2 < DIVISION I 3 EVIDENCE OF MEDICAL EXPENSES AND RECOVERABLE DAMAGES FOR 4 MEDICAL EXPENSES > 5 2. Page 2, after line 5 by inserting: 6 < DIVISION ___ 7 COVID-19-RELATED LIABILITY 8 Sec. ___. NEW SECTION . 686D.1 Short title. 9 This chapter shall be known and may be cited as the “COVID-19 10 Response and Back-to-Business Limited Liability Act” . 11 Sec. ___. NEW SECTION . 686D.2 Definitions. 12 When used in this chapter, unless the context otherwise 13 requires: 14 1. “COVID-19” means the novel coronavirus identified 15 as SARS-CoV-2, the disease caused by the novel coronavirus 16 SARS-CoV-2 or a virus mutating therefrom, and conditions 17 associated with the disease caused by the novel coronavirus 18 SARS-CoV-2 or a virus mutating therefrom. 19 2. “Disinfecting or cleaning supplies” means and includes 20 hand sanitizers, disinfectants, sprays, and wipes. 21 3. “Health care facility” means and includes all of the 22 following: 23 a. A facility as defined in section 514J.102. 24 b. A facility licensed pursuant to chapter 135B. 25 c. A facility licensed pursuant to chapter 135C. 26 d. Residential care facilities, nursing facilities, 27 intermediate care facilities for persons with mental illness, 28 intermediate care facilities for persons with intellectual 29 disabilities, hospice programs, elder group homes, and assisted 30 living programs. 31 4. “Health care professional” means physicians and other 32 health care practitioners who are licensed, certified, or 33 otherwise authorized or permitted by the laws of this state 34 to administer health care services in the ordinary course 35 -1- SF2338.3912 (3) 88 ja/jh 1/ 7 #1. #2.
of business or in the practice of a profession, whether 1 paid or unpaid, including persons engaged in telemedicine or 2 telehealth. “Health care professional” includes the employer or 3 agent of a health care professional who provides or arranges 4 health care. 5 5. “Health care provider” means and includes a health care 6 professional, health care facility, home health care facility, 7 and any other person or facility otherwise authorized or 8 permitted by any federal or state statute, regulation, order, 9 or public health guidance to administer health care services 10 or treatment. 11 6. “Health care services” means services for the diagnosis, 12 prevention, treatment, care, cure, or relief of a health 13 condition, illness, injury, or disease. 14 7. “Minimum medical condition” means a diagnosis of COVID-19 15 that requires inpatient hospitalization or results in death. 16 8. “Person” means the same as defined in section 4.1. 17 “Person” includes an agent of a person. 18 9. “Personal protective equipment” means and includes 19 protective clothing, gloves, face shields, goggles, facemasks, 20 respirators, gowns, aprons, coveralls, and other equipment 21 designed to protect the wearer from injury or the spread of 22 infection or illness. 23 10. “Premises” means and includes any real property and 24 any appurtenant building or structure serving a commercial, 25 residential, educational, religious, governmental, cultural, 26 charitable, or health care purpose. 27 11. “Public health guidance” means and includes written 28 guidance related to COVID-19 issued by any of the following: 29 a. The centers for disease control and prevention of the 30 federal department of health and human services. 31 b. The centers for Medicare and Medicaid services of the 32 federal department of health and human services. 33 c. The federal occupational safety and health 34 administration. 35 -2- SF2338.3912 (3) 88 ja/jh 2/ 7
d. The office of the governor. 1 e. Any state agency, including the department of public 2 health. 3 12. “Qualified product” means and includes all of the 4 following: 5 a. Personal protective equipment used to protect the wearer 6 from COVID-19 or to prevent the spread of COVID-19. 7 b. Medical devices, equipment, and supplies used to treat 8 COVID-19, including medical devices, equipment, or supplies 9 that are used or modified for an unapproved use to treat 10 COVID-19 or to prevent the spread of COVID-19. 11 c. Medical devices, equipment, and supplies used outside of 12 their normal use to treat COVID-19 or to prevent the spread of 13 COVID-19. 14 d. Medications used to treat COVID-19, including medications 15 prescribed or dispensed for off-label use to attempt to treat 16 COVID-19. 17 e. Tests to diagnose or determine immunity to COVID-19. 18 f. Any component of an item described in paragraphs “a” 19 through “e” . 20 Sec. ___. NEW SECTION . 686D.3 Actual injury requirement in 21 civil actions alleging COVID-19 exposure. 22 A person shall not bring or maintain a civil action alleging 23 exposure or potential exposure to COVID-19 unless one of the 24 following applies: 25 1. The civil action relates to a minimum medical condition. 26 2. The civil action involves an act that was intended to 27 cause harm. 28 3. The civil action involves an act that constitutes actual 29 malice. 30 Sec. ___. NEW SECTION . 686D.4 Premises owner’s duty of care 31 —— limited liability. 32 A person who possesses or is in control of a premises, 33 including a tenant, lessee, or occupant of a premises, who 34 directly or indirectly invites or permits an individual onto 35 -3- SF2338.3912 (3) 88 ja/jh 3/ 7
a premises, shall not be liable for civil damages for any 1 injuries sustained from the individual’s exposure to COVID-19, 2 whether the exposure occurs on the premises or during any 3 activity managed by the person who possesses or is in control 4 of a premises, unless any of the following apply to the person 5 who possesses or is in control of the premises: 6 1. The person who possesses or is in control of the premises 7 recklessly disregards a substantial and unnecessary risk that 8 the individual would be exposed to COVID-19. 9 2. The person who possesses or is in control of the 10 premises exposes the individual to COVID-19 through an act that 11 constitutes actual malice. 12 3. The person who possesses or is in control of the premises 13 intentionally exposes the individual to COVID-19. 14 Sec. ___. NEW SECTION . 686D.5 Safe harbor for compliance 15 with regulations, executive orders, or public health guidance. 16 A person in this state shall not be held liable for civil 17 damages for any injuries sustained from exposure or potential 18 exposure to COVID-19 if the act or omission alleged to violate 19 a duty of care was in substantial compliance or was consistent 20 with any federal or state statute, regulation, order, or public 21 health guidance related to COVID-19 that was applicable to the 22 person or activity at issue at the time of the alleged exposure 23 or potential exposure. 24 Sec. ___. NEW SECTION . 686D.6 Liability of health care 25 providers. 26 1. A health care provider shall not be liable for civil 27 damages for causing or contributing, directly or indirectly, to 28 the death or injury of an individual as a result of the health 29 care provider’s acts or omissions while providing or arranging 30 health care in support of the state’s response to COVID-19. 31 This subsection shall apply to all of the following: 32 a. Injury or death resulting from screening, assessing, 33 diagnosing, caring for, or treating individuals with a 34 suspected or confirmed case of COVID-19. 35 -4- SF2338.3912 (3) 88 ja/jh 4/ 7
b. Prescribing, administering, or dispensing a 1 pharmaceutical for off-label use to treat a patient with a 2 suspected or confirmed case of COVID-19. 3 c. Acts or omissions while providing health care to 4 individuals unrelated to COVID-19 when those acts or omissions 5 support the state’s response to COVID-19, including any of the 6 following: 7 (1) Delaying or canceling nonurgent or elective dental, 8 medical, or surgical procedures, or altering the diagnosis or 9 treatment of an individual in response to any federal or state 10 statute, regulation, order, or public health guidance. 11 (2) Diagnosing or treating patients outside the normal 12 scope of the health care provider’s license or practice. 13 (3) Using medical devices, equipment, or supplies outside 14 of their normal use for the provision of health care, including 15 using or modifying medical devices, equipment, or supplies for 16 an unapproved use. 17 (4) Conducting tests or providing treatment to any 18 individual outside the premises of a health care facility. 19 (5) Acts or omissions undertaken by a health care provider 20 because of a lack of staffing, facilities, medical devices, 21 equipment, supplies, or other resources attributable to 22 COVID-19 that renders the health care provider unable to 23 provide the level or manner of care to any person that 24 otherwise would have been required in the absence of COVID-19. 25 (6) Acts or omissions undertaken by a health care provider 26 relating to use or nonuse of personal protective equipment. 27 2. This section shall not relieve any person of liability 28 for civil damages for any act or omission which constitutes 29 recklessness or willful misconduct. 30 Sec. ___. NEW SECTION . 686D.7 Supplies, equipment, and 31 products designed, manufactured, labeled, sold, distributed, and 32 donated in response to COVID-19. 33 1. Any person that designs, manufactures, labels, sells, 34 distributes, or donates household disinfecting or cleaning 35 -5- SF2338.3912 (3) 88 ja/jh 5/ 7
supplies, personal protective equipment, or a qualified product 1 in response to COVID-19 shall not be liable in a civil action 2 alleging personal injury, death, or property damage caused by 3 or resulting from the design, manufacturing, labeling, selling, 4 distributing, or donating of the household disinfecting 5 or cleaning supplies, personal protective equipment, or a 6 qualified product. 7 2. Any person that designs, manufactures, labels, sells, 8 distributes, or donates household disinfecting or cleaning 9 supplies, personal protective equipment, or a qualified product 10 in response to COVID-19 shall not be liable in a civil action 11 alleging personal injury, death, or property damage caused by 12 or resulting from a failure to provide proper instructions or 13 sufficient warnings. 14 3. This section shall not apply in the event of any of the 15 following: 16 a. The person that designs, manufactures, labels, sells, 17 distributes, or donates household disinfecting or cleaning 18 supplies, personal protective equipment, or a qualified 19 product had actual knowledge of a defect in the household 20 disinfecting or cleaning supplies, personal protective 21 equipment, or a qualified product when put to the use for which 22 the household disinfecting or cleaning supplies, personal 23 protective equipment, or a qualified product was designed, 24 manufactured, sold, distributed, or donated, and the person 25 recklessly disregarded a substantial and unnecessary risk that 26 the household disinfecting or cleaning supplies, personal 27 protective equipment, or a qualified product would cause 28 serious personal injury, death, or serious property damage. 29 b. The person that designs, manufactures, labels, sells, 30 distributes, or donates household disinfecting or cleaning 31 supplies, personal protective equipment, or a qualified product 32 acted with actual malice. 33 Sec. ___. NEW SECTION . 686D.8 Construction. 34 This chapter shall not be construed to do any of the 35 -6- SF2338.3912 (3) 88 ja/jh 6/ 7
following: 1 1. Create, recognize, or ratify a claim or cause of action 2 of any kind. 3 2. Eliminate or satisfy a required element of a claim or 4 cause of action of any kind. 5 3. Affect the rights or limits under workers’ compensation 6 as provided in chapter 85, 85A, or 85B. 7 4. Abrogate, amend, repeal, alter, or affect any statutory 8 or common law immunity or limitation of liability. 9 Sec. ___. RETROACTIVE APPLICABILITY. This division of this 10 Act applies retroactively to January 1, 2020. > 11 3. Title page, by striking lines 1 through 4 and inserting 12 < An Act relating to civil actions, including recoverable 13 damages for medical expenses, evidence offered to prove 14 past medical expenses, and civil actions related to the 15 novel coronavirus, and including retroactive applicability 16 provisions. > 17 4. By renumbering as necessary. 18 ______________________________ COMMITTEE ON COMMERCE CARLSON of Muscatine, Chairperson -7- SF2338.3912 (3) 88 ja/jh 7/ 7 #3. #4.