87R3751 BRG-F
By: Smith H.B. No. 3748
A BILL TO BE ENTITLED
AN ACT
relating to liability of health care providers for certain claims
arising during a pandemic.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) The legislature finds that:
(1) the widespread effect of Coronavirus Disease 2019
("COVID-19") in this state has resulted in a state of disaster as
declared by the governor under Section 418.014, Government Code;
(2) the frequency and severity of such cases in this
state have severely taxed the physicians and health care providers,
including health care institutions, stressed the state's health
care system, and created shortages of medical staff, therapeutics,
hospital beds, testing equipment, and safety supplies;
(3) physicians and health care providers often have
inadequate facilities to respond to the disaster;
(4) physicians and health care providers often have
inadequate test kits and monitoring devices to properly assess all
those presenting themselves for care or treatment;
(5) because of the number and severity of cases, many
physicians and health care providers in this state have been forced
to prioritize care and treatment;
(6) many physicians and health care providers have
placed themselves, their loved ones, and their livelihoods at risk
by trying to respond to the disaster;
(7) at the current time, there is no certainty as far
as how long this crisis will last;
(8) a pandemic, including the COVID-19 pandemic,
requires an enormous response from governments working in
coordination with physicians and health care providers in the
community;
(9) protecting physicians and health care providers
from unnecessary liability supports their efforts during a
pandemic, including the COVID-19 pandemic;
(10) there is a strong public interest to be served by
this Act; and
(11) while some prior rights will be impaired by this
Act, the impairment is not significant and the interest of
protecting the public and ensuring adequate care vastly outweighs
those rights.
(b) Because of the conditions stated in Subsection (a) of
this section, the purpose of Section 74.155, Civil Practice and
Remedies Code, as added by this Act, is to improve and modify the
system by which health care liability claims are determined in
order to:
(1) promote the public health, safety, and welfare of
all citizens and ensure access to care and treatment during a
pandemic by broadly protecting physicians and health care
providers, including health care institutions, in this state from
liability that may relate to the care or treatment of individuals
associated with a pandemic, including COVID-19;
(2) provide for prompt and swift medical and health
care responses to the citizens of this state suffering from
COVID-19;
(3) recognize that many physicians and health care
providers responding to these situations may not have the full
benefits of the medical devices and facilities they would in
non-disaster situations;
(4) encourage physicians and health care providers
from other states to respond, if necessary, to the COVID-19
disaster in this state as declared by the president of the United
States and by the governor; and
(5) ensure that the focus and resources of physicians
and health care providers in responding to the COVID-19 disaster
are being addressed.
SECTION 2. Subchapter D, Chapter 74, Civil Practice and
Remedies Code, is amended by adding Section 74.155 to read as
follows:
Sec. 74.155. LIABILITY OF PHYSICIANS, HEALTH CARE
PROVIDERS, AND FIRST RESPONDERS DURING PANDEMIC. (a) In this
section:
(1) "Disaster declaration" means a declaration of a
state of disaster or emergency by the president of the United
States, a declaration of a state of disaster by the governor under
Chapter 418, Government Code, and any amendment, modification, or
extension of the declaration.
(2) "First responder" has the meaning assigned by
Section 421.095, Government Code.
(3) "Pandemic disease" means an infectious disease
that spreads to a significant portion of the population of a
country, multiple countries, or the world and that poses a
substantial risk of a significant number of human fatalities,
illnesses, or permanent long-term disabilities.
(b) 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, including:
(1) screening, assessing, diagnosing, or treating an
individual who is infected or suspected of being infected with a
pandemic disease;
(2) prescribing, administering, or dispensing a drug
or medicine for off-label or investigational use to treat an
individual who is infected or suspected of being infected with a
pandemic disease;
(3) diagnosing or treating an individual who is
infected or suspected of being infected with a pandemic disease
outside the normal area of the physician's or provider's specialty,
if any;
(4) delaying or canceling nonurgent or elective
medical, surgical, or dental procedures;
(5) delaying, canceling, or not accepting in-person
appointments for office or clinical visits, diagnostic tests,
scheduled treatment, physical or occupational therapy, or any other
diagnosis or treatment of an illness or condition not related to a
pandemic disease;
(6) using medical devices, equipment, or supplies
outside of their normal use, including using or modifying such
devices, equipment, or supplies for an unapproved use, to treat an
individual who is infected or suspected of being infected with a
pandemic disease;
(7) conducting tests on or providing treatment to an
individual who is infected or suspected of being infected with a
pandemic disease outside the premises of a health care facility;
(8) acts or omissions caused by a lack of personnel or
staffing, facilities, medical devices, supplies, or other
resources attributable to a pandemic disease that renders a
physician, health care provider, or first responder unable to
provide the same level or manner of care to any individual that
otherwise would have been acquired in the absence of the disease;
and
(9) acts or omissions arising from the use or nonuse of
personal protective equipment.
(c) This section does not alter the scope of practice of a
physician, health care provider, or first responder under the laws
of this state.
(d) The immunity provided by this section is in addition to
any other immunity or limitations of liability provided by law.
(e) This section applies only to a claim arising from care,
treatment, or failure to provide care or treatment that occurred
during a period beginning on the date that the president of the
United States or the governor makes a disaster declaration related
to a pandemic disease and ending 60 days after the date that the
declaration terminates.
SECTION 3. Section 74.155, Civil Practice and Remedies
Code, as added by this Act, applies only to a cause of action that
accrued on or after March 7, 2020. A cause of action that accrued
before March 7, 2020, is governed by the law applicable to the cause
of action immediately before the effective date of this Act, and
that law is continued in effect for that purpose.
SECTION 4. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2021.