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COVID law doesn't completely shut the door on Texas medical malpractice cases

Some incorrectly believe that pandemic law thwarts accountability in court

While there’s no doubt that medical malpractice cases are challenging, there are some big misconceptions among the public—and even some attorneys who don’t handle helpful cases regularly—about what is and isn’t allowed by Texas law.

Take a COVID-19 for example. There’s some misinformation out there that while COVID is still considered a pandemic that it’s impossible for a patient or family to pursue a medical malpractice claim no matter what. That’s just not the case, though.

As an initial matter, claims against a hospital, physician, or healthcare provider over treatment of COVID itself are tough. Any claim for medical malpractice requires showing a standard of care. This means what a reasonable, hospital, physician, or healthcare provider would do under the same or similar circumstances. The COVID challenge in medicine, of course, has been hard to treat because it is a new virus and condition. In other words, there isn’t a standard of care. Well, at least there wasn’t a standard of care at the beginning, although by this point one has arguably developed.

So, what about hospital, physician, nursing, or other healthcare that is not directly related to COVID?

It’s first important to understand exactly what the statute says. On June 14, 2021, the governor of Texas signed into law the Pandemic Liability Protection Act, which is in relevant part codified at Texas Civil Practice & Remedies Code Section 74.155. In a section entitled “Liability physicians, health care providers, and first responders during a pandemic,” the statute provides that:

“Except in the case of reckless conduct or intentional, wilful, or wanton misconduct, the 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 related to or impacted by a pandemic disease or a disaster declaration related to pandemic disease…”

But the statute doesn’t end there. The liability protection isn’t automatically triggered. Section 74.155(b) imposes the burden of proof on the physician, health care provider, or first responder to show by a preponderance of the evidence that either: “(1) a pandemic disease or disaster declaration related to pandemic disease was a producing cause of the care, treatment, or failure to 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 the pandemic disease at the time of the care, treatment, or failure to provide care or treatment (but then yet another standard that applies for #2 outlines how a plaintiff can use evidence to defeat the defense).”

Since 2003, Texas law has had a similar standard, wilful and wanton negligence, in hospital emergency room (ER) cases involving bona fide emergency care. Here at Painter Law Firm, we have successfully resolved numerous cases involving ER care, despite the heightened standard. Although it’s not possible to achieve in every case, the type of evidence we look for is documentation that a physician or healthcare provider had actual awareness of some clinical or diagnostic finding that showed an extreme degree of risk to the patient, requiring some treatment that was given.

Although the pandemic protection language is broad, a similar approach could be successful in certain cases, depending on the evidence in the medical records. This is where experience matters. If you’ve been seriously injured by poor hospital, physician, or health care before or during the COVID pandemic in Texas, then contact a top-rated experienced Texas medical malpractice lawyer for a free consultation about your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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