Pandemic Poses Legal Pitfalls: TMA Seeks Better Liability Shields
By Joey Berlin Texas Medicine August 2020

 Aug_20_TM_Law

Under Texas law, physicians treating COVID-19 patients in a volunteer capacity have potential defenses against lawsuits that might arise from that care.

But for non-volunteer physicians on the COVID battlefield – often working in harrowing, overloaded settings, high on patient count and low on equipment – the same liability shields don’t exist. And with a resurgence in COVID-19 cases and hospitalizations taking hold in June, the Texas Medical Association continued its pandemic-long push to extend liability protections to all frontline physicians, volunteer or not.

In early April, TMA, the Texas Hospital Association (THA), Texas Health Care Association, and other groups urged Gov. Greg Abbott to issue an executive order temporarily limiting liability for all health care workers on the front lines of the COVID-19 crisis. The letter asked the governor to extend existing liability protections for volunteers to all physicians, health care practitioners, and facilities.

“In some situations, they are facing shortages of life-saving equipment while trying to render care to a patient population that exceeds their capacity,” the joint letter noted. “In other situations, to fill personnel shortages, they are being asked to provide health care services that, while within the scope of their licenses or other authorizations, are outside of their facility’s historical credentialing policies or outside their chosen specialty practice.”

Governor Abbott has so far not issued an executive order, but he has requested federal liability protections, which, at press time in June, Congress was weighing as part of the next COVID-19 relief package.

State volunteer protections

Texas law provides certain civil liability protections for physicians acting in a volunteer, uncompensated capacity in response to events like COVID-19, according to a recently updated TMA white paper. (See “Volunteer Liability Protections: A Rundown,” below.) Among those:

• State law provides immunity from civil liability for volunteers whose acts occur “in giving care, assistance, or advice in response to a man-made or natural disaster,” unless their conduct is reckless or they engage in “intentional, willful, or wanton misconduct.” That immunity applies only if the person’s volunteer help comes at the request of a local, state, or federal agency, or certain charitable organizations that provide services to mitigate the effects of a disaster.
• 2019 legislation enacted in response to Hurricane Harvey limits volunteer physicians’ liability while helping out during a manmade or natural disaster without requiring a request for help.
• The state’s “Good Samaritan” law is meant to incentivize physician volunteers to respond to medical emergencies. It limits volunteers’ liability for providing emergency care that results in injury if the care was provided in good faith. However, the Good Samaritan law doesn’t protect willful or wanton misconduct, or a person who administers emergency care but caused the emergency to begin with.
• Texas’ Charitable Immunity and Liability Act (CILA) limits liability for volunteer health care workers of certain charities in the case of death, damage, or injury to a patient. Volunteers looking for immunity under CILA must demonstrate four requirements to invoke the law. Those include showing that they were acting within the course and scope of their duties or functions within the organization.

“Note that, while these protections exist, these laws do not prevent the physician from being sued. Instead, these are affirmative defenses a physician may raise and must prove to defeat a medical professional liability claim,” TMA’s white paper explains. “Thus, it is still highly recommended that a physician (active or retired) carry liability insurance to help offset costs that may be needed to successfully defend a lawsuit.”

TMA’s Office of the General Counsel also notes that current volunteer protections may not be broad enough to apply to all volunteer physician services during a disaster declaration.

The need for more

At the federal level, Congress in late March granted limited civil liability shields for volunteers as part of the CARES Act. According to the American Medical Association, those protections override state laws that are inconsistent with CARES, but state laws that offer greater protection  take precedence.

Non-volunteer physicians, however, remain relatively unprotected. TMA’s April 3 letter asked Governor Abbott for help, noting that attorneys already were advertising COVID-19 litigation.

Paid physicians, other health care workers, and facilities “are facing a surge of incoming patients, that may or may not be infected with a virus that they may or may not be equipped to handle,” the letter said. “They are running low on personal protective equipment necessary to protect themselves, but they are still there. They are having to delay care for non-COVID-19 conditions to divert most efforts to combat the virus. They are being reassigned from their specialty areas to other areas of care where they may not have the most updated training. And now they are being threatened with litigation. This threat risks deterring our physicians and health care providers from providing needed, urgent patient care.”

For example, TMA is concerned about potential physician liability for care delays as the result of government orders related to the pandemic.

End-of-life care presents one scenario in which wide liability protections could help physicians rest easy while doing their jobs to the best of their ability, says Robert Fine, MD, clinical director of Baylor Scott & White’s Office of Clinical Ethics and Palliative Care.

“Unfortunately, we don’t have as airtight of liability protection as we would like, and it is in particular around the [do-not-resuscitate] part of limiting life-sustaining treatment,” Dr. Fine said.

A backup plan

If broader protections don’t come, Texas health care organizations have a plan for how to proceed if patient load exceeds care capacity.

In a March 29 letter TMA, THA, and other organizations asked Governor Abbott to endorse the use of mass critical care guidelines developed by the Texas health care community over the past decade. As explained in the guidelines, they establish a protocol “to allocate scarce health care resources (intensive care services, including ventilators) to those who are most likely to benefit medically during a pandemic respiratory crisis or other emergency situation that has the potential to overwhelm available intensive care resources.”

The guidelines are based on tighter control of resources; giving priority to patients “for whom treatment most likely would be lifesaving and whose functional outcome most likely would improve with treatment”; and, in a state of emergency, the governor having the authority to supersede laws or regulations that might conflict with the guidelines.

To read the guidelines for adult and pediatric care, visit tma.tips/massccguidelines.

TMA’s letter also asked Governor Abbott to “suspend any license reviews, criminal penalties, and civil damages for following mass critical care guidelines.”

“Physicians and providers need to know they will not be subjected to civil/criminal/regulatory review when operating under mass critical care guidelines whose purpose is to save lives while avoiding discrimination,” the letter said.

Dr. Fine, who helped develop the guidelines, explains: “The whole point of the guidelines, which they say upfront, is to save as many lives as possible. That means giving priority to treat those that have the best chance of benefiting from the treatment. … We’re not in that horrible place yet. We don’t know if we’ll get there, but we need to be prepared.”

Tex Med. 2020;116(8):38-40
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Last Updated On

August 03, 2020

Originally Published On

July 30, 2020

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Joey Berlin

Associate Editor

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Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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