Physician-Led Results: Liability Protections for the Next Pandemic
By Joey Berlin

Physicians inherently want to help people – that’s why they’re physicians. But as COVID-19 has shown, there may be no harder situation in which to help Texans than during the rigors and pressures of a pandemic.

So physicians in that situation need assurances – specifically, liability protections that account for the extraordinary situation they’re in. Senate Bill 6 by Sen. Kelly Hancock (R-North Richland Hills), passed with organized medicine’s support, provides some of that.

"Having better liability protections during the pandemic just helps to protect medicine to act in the public’s best interest to the best degree that we can,” said Austin oncologist Debra Patt, MD, who was chair of the Texas Medical Association’s Council on Legislation during most of this year’s legislative session. “So it’s important in our early response and participation in future emergencies.”

SB 6 specifically provides some liability protection for physicians (as well as other practitioners, health care institutions, and first responders) during a pandemic if certain conditions are met. The bill generally relieves them of liability for injury or death caused by (1) providing care or treatment to a person during a pandemic, or (2) lack of care or treatment – regardless of the circumstances under which the person was injured or died. If sued for such an event, physicians may avoid liability by proving by a preponderance of evidence that:

  • The pandemic disease was a cause of the care or treatment, or lack thereof, that caused the injury or death; or
  • The person who was injured or died was “diagnosed or reasonably suspected to be infected with a pandemic disease” at the time.

The bill doesn’t protect reckless conduct or intentional, willful, or wanton misconduct. Otherwise, protected care or treatment under SB 6 includes:

  • Screening, assessing, diagnosing, or treating someone who’s infected with the pandemic disease or is suspected of being infected;
  • Prescribing, administering, or dispensing a drug for off-label or investigational use to treat such a person;
  • Diagnosing or treating a pandemic disease outside the physician’s normal specialty area;
  • Delaying or canceling nonurgent or elective procedures, as well as delaying, canceling, or not accepting in-person appointments for pandemic-unrelated illnesses; and
  • Acts or omissions caused by a lack of staffing, facilities, supplies, and other resources attributable to the pandemic.

“That’ll definitely help us this time and with the future, because there’s just no way that you can know at the onset of a pandemic on a new disease, what to do with it,” said Houston emergency physician and TMA Immediate Past President Diana Fite, MD. “You treat it the best you can.”

The law covers pandemics and disaster declarations related to pandemics but doesn’t provide new protections related to hurricanes or other natural disasters. Importantly, it contains several deadlines that limit when physicians can exercise the new protection if a lawsuit is filed. A physician may mount his or her defense under the law no later than the latest of these three dates:

  • 60 days after SB 6 went into effect on June 14, 2021, which is particularly important for a suit that was already filed;
  • 120 days after the physician files an answer to the lawsuit; or
  • 60 days after the person suing serves an expert report on the physician.

Dallas public health physician John Carlo, MD, the new chair of TMA’s Council on Legislation, says SB 6’s provisions covering not only care, but also failure to provide care, are particularly important for when “we’re in a situation where we’re having to change everything from scheduled procedures, or having to change what we traditionally do.”

SB 6 was a collaboration between the Texas Civil Justice League and other business and professional organizations. Medicine enthusiastically backed the bill.

“It is a comprehensive bill that covers liability protections during a pandemic for broad swaths of Texas business, including health care,” said Dan Finch, TMA’s vice president of advocacy. “We’re grateful to have been part of a team effort to support it.”

Other existing liability protections also may protect physicians in these types of cases. For some examples, consult a TMA white paper available free to members at tma.tips/volunteerliability.

Last Updated On

July 08, 2021

Originally Published On

June 22, 2021

Joey Berlin

Associate Editor

(512) 370-1393
JoeyBerlinSQ

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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