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Staff photo by Robin Rudd/Rep. Mike Carter

NASHVILLE — A business-backed bill seeking to protect Tennessee companies and other entities from what proponents characterize as frivolous COVID-19 lawsuits has cleared its first state House hurdle.

The measure passed the Republican-led Civil Justice Subcommittee on a voice vote.

Tennessee Chamber of Commerce and Industry President Bradley Jackson, whose organization led a 30-member coalition of trade groups drafting the original bill, told lawmakers that "what we seek to do is provide liability protection for businesses except in cases of 'willful negligence or gross misconduct.'"

Jackson said all the groups are seeking is a reckless conduct standard under which a business or other entity that "purposely ignored" COVID-19 guidelines imposed by government would not be protected but others making good faith efforts to carry out often evolving standards would be protected.

"We just want to make sure that good actors have protection," Jackson told the subcommittee, headed by Chairman Mike Carter, R-Ooltewah.

(READ MORE: Tennessee Rep. Mike Carter apologizes to black colleague over fried chicken remark)

Tennessee Trial Lawyers Association President Matt Hardin told lawmakers that plaintiffs' attorneys are worried about unintended consequences of the legislation.

Hardin argued the "protection is already there" at the onset of court proceedings with defense attorneys for businesses and others able to move for summary judgment.

If the measure becomes law, Hardin said, the concern is it will play out in a "different direction," Hardin warned, adding "there will basically be an effort to prevent any type of claim" by linking it to the coronavirus pandemic.

Judiciary Committee Chairman Michael Curcio, R-Dickson, the bill's sponsor, said the measure is intended to blunt lawsuits against businesses and other entities trying to comply with directives.

He cited a hypothetical lawsuit by a patient seeking hip replacement whose surgery was delayed because of a lack of personal protective equipment related to coronavirus. The would-be patient could get an infection or become gravely ill or die, Curcio said.

"You don't want someone to sue the hospital over that," Curcio said.

Early on during the pandemic, Gov. Bill Lee issued an executive order delaying all elective surgeries in order to conserve personal protective equipment for a potential overload of hospitals dealing with COVID-19 patients. It has since been rescinded.

The Tennessee Chamber and other groups are pressing the legislation as one nursing home in Gallatin, north of Nashville, is already battling lawsuits after 23 residents died after contracting COVID-19.

The Times Free Press reported in mid-May that 42% of coronavirus deaths in the greater Chattanooga area covering Southeast Tennessee, Northwest Georgia and Northeast Alabama were nursing home residents.

Carter, an attorney and former Hamilton County General Sessions Court judge, had his own concerns about the legislation, saying if businesses were "downright reckless those should not be covered."

Carter said he had always thought that there was no legal cause of action in Tennessee for cases involving communicable diseases except if transmission was deliberate, such as someone who knowingly infected an unwitting person. That would be subject to assault allegations because it was "intentionally done."

He then offered an amendment that states "not withstanding any law to the contrary, there is no cause of action against a person based on exposure to or contraction of coronavirus unless the person caused the exposure to or contraction of coronavirus by willful misconduct."

The subcommittee approved that as well as a follow up amendment from Carter that excludes Tier I hospitals such as Erlanger Medical Center from protections in his first amendment. Carter said that is because the state's top hospitals were already under strict state and federal infection control requirements prior to the arrival of coronavirus.

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.

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