Texas 2021 - 87th Regular

Texas House Bill HB3748 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	87R3751 BRG-F
2	2	By: Smith H.B. No. 3748
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to liability of health care providers for certain claims
8	8	arising during a pandemic.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. (a) The legislature finds that:
11	11	(1) the widespread effect of Coronavirus Disease 2019
12	12	("COVID-19") in this state has resulted in a state of disaster as
13	13	declared by the governor under Section 418.014, Government Code;
14	14	(2) the frequency and severity of such cases in this
15	15	state have severely taxed the physicians and health care providers,
16	16	including health care institutions, stressed the state's health
17	17	care system, and created shortages of medical staff, therapeutics,
18	18	hospital beds, testing equipment, and safety supplies;
19	19	(3) physicians and health care providers often have
20	20	inadequate facilities to respond to the disaster;
21	21	(4) physicians and health care providers often have
22	22	inadequate test kits and monitoring devices to properly assess all
23	23	those presenting themselves for care or treatment;
24	24	(5) because of the number and severity of cases, many
25	25	physicians and health care providers in this state have been forced
26	26	to prioritize care and treatment;
27	27	(6) many physicians and health care providers have
28	28	placed themselves, their loved ones, and their livelihoods at risk
29	29	by trying to respond to the disaster;
30	30	(7) at the current time, there is no certainty as far
31	31	as how long this crisis will last;
32	32	(8) a pandemic, including the COVID-19 pandemic,
33	33	requires an enormous response from governments working in
34	34	coordination with physicians and health care providers in the
35	35	community;
36	36	(9) protecting physicians and health care providers
37	37	from unnecessary liability supports their efforts during a
38	38	pandemic, including the COVID-19 pandemic;
39	39	(10) there is a strong public interest to be served by
40	40	this Act; and
41	41	(11) while some prior rights will be impaired by this
42	42	Act, the impairment is not significant and the interest of
43	43	protecting the public and ensuring adequate care vastly outweighs
44	44	those rights.
45	45	(b) Because of the conditions stated in Subsection (a) of
46	46	this section, the purpose of Section 74.155, Civil Practice and
47	47	Remedies Code, as added by this Act, is to improve and modify the
48	48	system by which health care liability claims are determined in
49	49	order to:
50	50	(1) promote the public health, safety, and welfare of
51	51	all citizens and ensure access to care and treatment during a
52	52	pandemic by broadly protecting physicians and health care
53	53	providers, including health care institutions, in this state from
54	54	liability that may relate to the care or treatment of individuals
55	55	associated with a pandemic, including COVID-19;
56	56	(2) provide for prompt and swift medical and health
57	57	care responses to the citizens of this state suffering from
58	58	COVID-19;
59	59	(3) recognize that many physicians and health care
60	60	providers responding to these situations may not have the full
61	61	benefits of the medical devices and facilities they would in
62	62	non-disaster situations;
63	63	(4) encourage physicians and health care providers
64	64	from other states to respond, if necessary, to the COVID-19
65	65	disaster in this state as declared by the president of the United
66	66	States and by the governor; and
67	67	(5) ensure that the focus and resources of physicians
68	68	and health care providers in responding to the COVID-19 disaster
69	69	are being addressed.
70	70	SECTION 2. Subchapter D, Chapter 74, Civil Practice and
71	71	Remedies Code, is amended by adding Section 74.155 to read as
72	72	follows:
73	73	Sec. 74.155. LIABILITY OF PHYSICIANS, HEALTH CARE
74	74	PROVIDERS, AND FIRST RESPONDERS DURING PANDEMIC. (a) In this
75	75	section:
76	76	(1) "Disaster declaration" means a declaration of a
77	77	state of disaster or emergency by the president of the United
78	78	States, a declaration of a state of disaster by the governor under
79	79	Chapter 418, Government Code, and any amendment, modification, or
80	80	extension of the declaration.
81	81	(2) "First responder" has the meaning assigned by
82	82	Section 421.095, Government Code.
83	83	(3) "Pandemic disease" means an infectious disease
84	84	that spreads to a significant portion of the population of a
85	85	country, multiple countries, or the world and that poses a
86	86	substantial risk of a significant number of human fatalities,
87	87	illnesses, or permanent long-term disabilities.
88	88	(b) Except in a case of reckless conduct or intentional,
89	89	wilful, or wanton misconduct, a physician, health care provider, or
90	90	first responder is not liable for an injury, including economic and
91	91	noneconomic damages, or death arising from care, treatment, or
92	92	failure to provide care or treatment relating to or impacted by a
93	93	pandemic disease or a disaster declaration related to a pandemic
94	94	disease, including:
95	95	(1) screening, assessing, diagnosing, or treating an
96	96	individual who is infected or suspected of being infected with a
97	97	pandemic disease;
98	98	(2) prescribing, administering, or dispensing a drug
99	99	or medicine for off-label or investigational use to treat an
100	100	individual who is infected or suspected of being infected with a
101	101	pandemic disease;
102	102	(3) diagnosing or treating an individual who is
103	103	infected or suspected of being infected with a pandemic disease
104	104	outside the normal area of the physician's or provider's specialty,
105	105	if any;
106	106	(4) delaying or canceling nonurgent or elective
107	107	medical, surgical, or dental procedures;
108	108	(5) delaying, canceling, or not accepting in-person
109	109	appointments for office or clinical visits, diagnostic tests,
110	110	scheduled treatment, physical or occupational therapy, or any other
111	111	diagnosis or treatment of an illness or condition not related to a
112	112	pandemic disease;
113	113	(6) using medical devices, equipment, or supplies
114	114	outside of their normal use, including using or modifying such
115	115	devices, equipment, or supplies for an unapproved use, to treat an
116	116	individual who is infected or suspected of being infected with a
117	117	pandemic disease;
118	118	(7) conducting tests on or providing treatment to an
119	119	individual who is infected or suspected of being infected with a
120	120	pandemic disease outside the premises of a health care facility;
121	121	(8) acts or omissions caused by a lack of personnel or
122	122	staffing, facilities, medical devices, supplies, or other
123	123	resources attributable to a pandemic disease that renders a
124	124	physician, health care provider, or first responder unable to
125	125	provide the same level or manner of care to any individual that
126	126	otherwise would have been acquired in the absence of the disease;
127	127	and
128	128	(9) acts or omissions arising from the use or nonuse of
129	129	personal protective equipment.
130	130	(c) This section does not alter the scope of practice of a
131	131	physician, health care provider, or first responder under the laws
132	132	of this state.
133	133	(d) The immunity provided by this section is in addition to
134	134	any other immunity or limitations of liability provided by law.
135	135	(e) This section applies only to a claim arising from care,
136	136	treatment, or failure to provide care or treatment that occurred
137	137	during a period beginning on the date that the president of the
138	138	United States or the governor makes a disaster declaration related
139	139	to a pandemic disease and ending 60 days after the date that the
140	140	declaration terminates.
141	141	SECTION 3. Section 74.155, Civil Practice and Remedies
142	142	Code, as added by this Act, applies only to a cause of action that
143	143	accrued on or after March 7, 2020. A cause of action that accrued
144	144	before March 7, 2020, is governed by the law applicable to the cause
145	145	of action immediately before the effective date of this Act, and
146	146	that law is continued in effect for that purpose.
147	147	SECTION 4. This Act takes effect immediately if it receives
148	148	a vote of two-thirds of all the members elected to each house, as
149	149	provided by Section 39, Article III, Texas Constitution. If this
150	150	Act does not receive the vote necessary for immediate effect, this
151	151	Act takes effect September 1, 2021.