Rahm Emanuel, a former mayor of Chicago and advisor to Barack Obama, famously said, “You never want a serious crisis to go waste. And what I mean by that is an opportunity to do things that you think you could not do before.
To tort reform aficionados in Texas, COVID-19 is a serious crisis that they didn’t want to waste without getting more tort reform on the book. And, as of June 1, 2021, it looks like they’ll be successful—that’s when Senate Bill 6 went to the desk of Governor Greg Abbott, who almost certainly will sign it.
To my thinking, current Texas law sufficiently handles liability protections to doctors, hospitals, and other health care providers. For instance, a medical malpractice plaintiff must produce medical expert testimony defining the applicable standard of care.
Certainly, at the beginning of the pandemic, there wasn’t a standard of care. It was a novel virus. Different physicians had different treatment ideas. Some worked, some didn’t. As the months went on, critical care and hospitalist experts with whom I spoke said that there were consensus-based treatment protocols in place. In other words, there was a standard of care.
Here’s how the new law will work, once Gov. Abbott signs it. It will amend Texas Civil Practice & Remedies Code Section 74.155, which is entitled “Liability of Physicians, Health Care Providers, and First Responders During Pandemic.”
When there’s a disaster declaration in effect for the entire estate relating to a pandemic disease:
“Except in a case of reckless conduct or intentional, wilful, or wanton misconduct, a physician, health care provider, or first responder is not liable for an injury, including economic and noneconomic damages, or death arising from care, treatment, or failure to provide care or treatment relating to or impacted by a pandemic disease or a disaster declaration related to a pandemic disease if the physician, health care provider, or first responder proves by a preponderance of the evidence that: (1) a pandemic disease or disaster declaration related to a pandemic disease was a producing cause of the care, treatment, or failure to provide care or treatment that allegedly caused the injury or death; or (2) the individual who suffered injury or death was diagnosed or reasonably suspected to be infected with a pandemic disease at the time of the care, treatment, or failure to provide care or treatment.”
Time will tell how Texas courts will interpret this provision. It reminds me, though, of another tort reform measure that was enacted to protect hospital-based emergency room (ER) physicians and providers engaged in providing bona fide emergency care. That statute, Texas Civil Practice & Remedies Code Section 74.153 imposes a standard of proof called willful and wanton negligence.
I’ve written in more detail about the ER standard here. Painter Law Firm has been successful at obtaining favorable recoveries for our clients in ER malpractice cases, despite the tort reform protections, and I expect the same will be true in certain coronavirus malpractice cases, as well. This illustrates the importance of hiring a top-rated experienced Texas medical malpractice lawyer.