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Sep 20, 2022

Liability of Health Care Providers Amid the COVID-19 Pandemic: An Update

By: John Faubion

As the world continues its struggle against COVID-19, we see the effects of the pandemic extend to impact medical malpractice litigation.  In 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act into law.  The CARES Act provided temporary immunity to volunteer health care providers.  Congress also passed similar legislation, including the Public Readiness and Emergency Preparedness (PREP) Act, providing immunity to health care professionals who meet certain conditions when providing treatment for COVID-19.

With respect to Texas legislation, Governor Abbott signed Senate Bill 6 into law on June 14, 2021.  This legislation is titled the “Pandemic Liability Protection Act,” and adds section 74.155 to the Civil Practice and Remedies Code. 

The new law provides protection from civil liability for certain individuals and organizations in some pandemic-related claims.  Section 74.155 is similar to the emergency care statute because it provides civil immunity for health care providers in certain circumstances, unless the claimant can prove reckless conduct or intentional, wilful, or wanton misconduct.  Tex. Civ. Prac. & Rem. Code 74.155(b).  

Section 74.155 provides that a physician, health care provider, or first responder is not liable for injury or death arising from care, treatment, or failure to provide care or treatment impacted by COVID-19 when the defendant shows by a preponderance of the evidence that COVID-19 was a producing cause of the care or treatment allegedly causing injury or death, or that the claimant was diagnosed or reasonably suspected to be infected with COVID-19 at the time of the care, treatment, or failure to provide treatment.  Id.

Subsection (d) of the statute provides a list of conduct within the scope of “care, treatment, or failure to provide care or treatment relating to or impacted by a pandemic disease” as set forth in subsection (b).  This conduct includes:

  1. screening, assessing, diagnosing, or treating an individual who is infected or suspected of being infected with a pandemic disease;
  1. 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;
  1. 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;
  1. delaying or canceling nonurgent or elective medical, surgical, or dental procedures;
  1. 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;
  1. 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;
  1. 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;
  1. 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;
  1. acts or omissions arising from the use or nonuse of personal protective equipment.

Id. at § 74.155(d).  Qualifying health care providers may assert this defense in addition to other defenses or liability limitations, such as sovereign or governmental immunity or other liability limitations contained within Chapter 74.  Id. at § 74.155(f). 

Timing-wise, to successfully assert the defense under 74.155, the defendant health care provider must provide “specific facts that support an assertion under Subsection (b)(1) or (2)” before the later of either:  60 days after service of an expert report under 74.351; or 120 days after the date of the defendant’s original answer.  If a defendant requests protection from pandemic-related liability under 74.155 and the court denies that request, the defendant may take an interlocutory appeal. Id. at § 51.014(a)(15). 

Certainly, if a health care provider is facing a health care liability claim in Texas that relates to care or treatment of a patient diagnosed or suspected of COVID-19, litigants should consider carefully how the application of section 74.155 may impact their claims or defenses.