SB2140 102ND GENERAL ASSEMBLY

LRB102 11485 LNS 16819 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB2140

Introduced 2/26/2021, by Sen. Dan McConchie

SYNOPSIS AS INTRODUCED:

New Act

Creates the COVID-19 Limited Liability Act. Provides that a person shall not bring or maintain a civil action alleging exposure or potential exposure to COVID-19 unless: the civil action relates to a minimum medical condition; the civil action involves an act that was intended to cause harm; or the civil action involves an act that constitutes actual malice. Provides, with exceptions, that a person who possesses or is in control of a premises shall not be liable for civil damages for any injuries sustained from the individual's exposure to COVID-19. Provides that a person shall not be held liable for civil damages for any injuries sustained from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in substantial compliance or was consistent with any federal or State statute, rule, regulation, order, or public health guidance related to COVID-19 that was applicable to the person or activity at issue at the time of the alleged exposure or potential exposure. Provides that a health care provider shall not be liable for civil damages for causing or contributing to the death or injury of an individual as a result of the health care provider's acts or omissions while providing or arranging health care in support of the State's response to COVID-19. Provides that any person who designs, manufactures, labels, sells, distributes, or donates household disinfecting or cleaning supplies, personal protective equipment, or a qualified product in response to COVID-19 shall not be liable in a civil action alleging personal injury, death, or property damage caused by or resulting from: the design, manufacturing, labeling, selling, distributing, or donating of the household disinfecting or cleaning supplies, personal protective equipment, or a qualified product; or a failure to provide proper instructions or sufficient warnings. Provides that the Act applies retroactively to January 1, 2020.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the COVID-19 Limited Liability Act.

Section 5. Definitions. As used in this Act:

"COVID-19" means the novel coronavirus identified as SARS-CoV-2, the disease caused by the novel coronavirus SARS-CoV-2, or a virus mutating therefrom, and conditions associated with the disease caused by the novel coronavirus SARS-CoV-2 or a virus mutating therefrom.

"Disinfecting or cleaning supplies" means hand sanitizers, disinfectants, sprays, and wipes.

"Health care facility" means an institution providing health care services or a health care setting, including, but not limited to, hospitals and other licensed inpatient centers, ambulatory surgical treatment centers, long-term care facilities, as defined by Section 1-113 of the Nursing Home Care Act, skilled nursing centers, residential treatment centers, diagnostic, laboratory, and imaging centers, rehabilitation and other therapeutic health settings, and residential care facilities, nursing facilities, intermediate care facilities for persons with mental illness, intermediate care facilities for persons with intellectual disabilities, hospice programs, elder group homes, and assisted living programs.

"Health care professional" means physicians and other health care practitioners who are licensed, certified, or otherwise authorized or permitted by the laws of this State to administer health care services in the ordinary course of business or in the practice of a profession, whether paid or unpaid, including persons engaged in telemedicine or telehealth. "Health care professional" includes the employer or agent of a health care professional who provides or arranges health care.

"Health care provider" means a health care professional, health care facility, home health care facility, and any other person or facility otherwise authorized or permitted by any federal or State statute, regulation, rule, order, or public health guidance to administer health care services or treatment.

"Health care services" means services for the diagnosis, prevention, treatment, care, cure, or relief of a health condition, illness, injury, or disease.

"Minimum medical condition" means a diagnosis of COVID-19 that requires inpatient hospitalization or results in death.

"Person" means an individual, corporation, limited liability company, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity. "Person" includes an agent of a person.

"Personal protective equipment" means protective clothing, gloves, face shields, goggles, face masks, respirators, gowns, aprons, coveralls, and other equipment designed to protect the wearer from injury or the spread of infection or illness.

"Premises" means any real property and any appurtenant building or structure serving a commercial, residential, educational, religious, governmental, cultural, charitable, or health care purpose.

"Public health guidance" means written guidance related to COVID-19 issued by:

(1) the Centers for Disease Control and Prevention of the federal Department of Health and Human Services;

(2) the Centers for Medicare and Medicaid Services of the federal Department of Health and Human Services;

(3) the federal Occupational Safety and Health Administration;

(4) the office of the Governor; or

(5) any State agency, including the Department of Public Health.

"Qualified product" means:

(1) personal protective equipment used to protect the wearer from COVID-19 or to prevent the spread of COVID-19;

(2) medical devices, equipment, and supplies used to treat COVID-19, including medical devices, equipment, or supplies that are used or modified for an unapproved use to treat COVID-19 or to prevent the spread of COVID-19;

(3) medical devices, equipment, and supplies used outside of their normal use to treat COVID-19 or to prevent the spread of COVID-19,;

(4) medications used to treat COVID-19, including medication prescribed or dispensed for off-label use to attempt to treat COVID-19;

(5) tests to diagnose or determine immunity to COVID-19; or

(6) any component of an item described in items (1) through (5) of this definition.

Section 10. Actual injury requirement in civil actions alleging COVID-19 exposure. A person shall not bring or maintain a civil action alleging exposure or potential exposure to COVID-19 unless:

(1) the civil action relates to a minimum medical condition;

(2) the civil action involves an act that was intended to cause harm; or

(3) the civil action involves an act that constitutes actual malice.

Section 15. Premises owner's duty of care; limited liability. A person who possesses or is in control of a premises, including a tenant, lessee, or occupant of a premises, who directly or indirectly invites or permits an individual onto a premises, shall not be liable for civil damages for any injuries sustained from an individual's exposure to COVID-19, whether the exposure occurs on the premises or during any activity managed by the person who possesses or is in control of a premises, unless the person who possesses or is in control of the premises:

(1) recklessly disregards a substantial and unnecessary risk that the individual would be exposed to COVID-19;

(2) exposes the individual to COVID-19 through an act that constitutes actual malice; or

(3) intentionally exposes the individual to COVID-19.

Section 20. Safe harbor for compliance with regulations, executive orders, or public health guidance. A person in this State shall not be held liable for civil damages for any injuries sustained from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in substantial compliance or was consistent with any federal or State statute, rule, regulation, order, or public health guidance related to COVID-19 that was applicable to the person or activity at issue at the time of the alleged exposure or potential exposure.

Section 25. Liability of health care providers.

(a) A health care provider shall not be liable for civil damages for causing or contributing, directly or indirectly, to the death or injury of an individual as a result of the health care provider's acts or omissions while providing or arranging health care in support of the State's response to COVID-19. This applies to:

(1) injury or death resulting from screening, assessing, diagnosing, care for, or treating individuals with a suspected or confirmed case of COVID-19;

(2) prescribing, administering, or dispensing a pharmaceutical for off-label use to treat a patient with a suspected or confirmed case of COVID-19; or

(3) acts or omissions while providing health care to individuals unrelated to COVID-19 when those acts or omissions support the State's response to COVID-19, including:

(i) delaying or canceling nonurgent or elective dental, medical, or surgical procedures, or altering the diagnosis or treatment of an individual in response to any federal or State statute, rule, regulation, order, or public health guidance;

(ii) diagnosing or treating patients outside the normal scope of the health care provider's license or practice;

(iii) using medical devices, equipment, or supplies outside of their normal use for the provision of health care, including using or modifying medical devices, equipment, or supplies for unapproved use;

(iv) conducting tests or providing treatment to any individual outside the premises of a health care facility;

(v) acts or omissions undertaken by a health care provider because of a lack of staffing, facilities, medical devices, equipment, supplies, or other resources attributable to COVID-19 that renders the health care provider unable to provide the level or manner of care to any person that otherwise would have been required in the absence of COVID-19; or

(vi) acts or omissions undertaken by a health care provider relating to use or nonuse of personal protective equipment.

(b) This Section shall not relieve any person of liability for civil damages for any act or omission that constitutes recklessness or willful misconduct.

Section 30. Supplies, equipment, and products designed, manufactured, labeled, sold, distributed, and donated in response to COVID-19.

(a) Any person who designs, manufactures, labels, sells, distributes, or donates household disinfecting or cleaning supplies, personal protective equipment, or a qualified product in response to COVID-19 shall not be liable in a civil action alleging personal injury, death, or property damage caused by or resulting from the design, manufacturing, labeling, selling, distributing, or donating of the household disinfecting or cleaning supplies, personal protective equipment, or a qualified product.

(b) Any person who designs, manufactures, labels, sells, distributes, or donates household disinfecting or cleaning supplies, personal protective equipment, or a qualified product in response to COVID-19 shall not be liable in a civil action alleging personal injury, death, or property damage caused by or resulting from a failure to provide proper instructions or sufficient warnings.

(c) This Section does not apply if:

(1) the person who designs, manufactures, labels, sells, distributes, or donates household disinfecting or cleaning supplies, personal protective equipment, or a qualified product has actual knowledge of a defect in the household disinfecting or cleaning supplies, personal protective equipment, or a qualified product when put to the use for which the household disinfecting or cleaning supplies, personal protective equipment, or a qualified product was designed, manufactured, sold, distributed, or donated, and the person recklessly disregarded a substantial and unnecessary risk that the household disinfecting or cleaning supplies, personal protective equipment, or a qualified product would cause serious personal injury, death, or serious property damage; or

(2) the person who designs, manufactures, labels, sells, distributes, or donates household disinfecting or cleaning supplies, personal protective equipment, or a qualified product acts with actual malice.

Section 35. Construction. This Act shall not be construed to:

(1) create, recognize, or ratify a claim or cause of action of any kind;

(2) eliminate or satisfy a required element of a claim or cause of action of any kind;

(3) affect the rights or limits under the Workers' Compensation Act, or the rights or limits related to police officers or firefighters under the laws of this State; or

(4) abrogate, amend, repeal, alter, or affect any statutory or common law immunity or limitation of liability.

Section 40. Applicability. This Act applies retroactively to January 1, 2020.