In June, Governor Greg Abbott signed Senate Bill 6, which protects against lawsuits for hospitals, providers, first responders “during a man-made disaster, natural disaster, or a health care emergency.” These covered entities would not be responsible for injuries or death due to the care or failure to provide care or medicine related to the pandemic.
COVID-19 was an unprecedented disaster, and physicians and other healthcare workers were treating patients with limited and changing information about best practices. Masking requirements, pharmaceutical solutions, and other treatments were often in flux, leaving providers in the dark about best practices. There was simply no data on what worked best.
As the pandemic progressed, provider advocates were pushing for an executive order that added protection for treatment during the pandemic. But when an order never materialized, organizations like the Texas Hospital Association moved to codify the protections to apply retroactively to care given during the pandemic and future disasters. After an attempt at federal legislation that went nowhere, advocates found success in the Texas Legislature, which in the end was a preferable change.
“An executive order would be great, but at the end of the day, we would either need federal or state legislation,” says Associate General Counsel for the Texas Hospital Association Cesar Lopez. A law would be much more challenging to repeal should the next administration want to reverse the executive order.
But during a declared disaster, caregivers will have more protection. “So much of what’s happened over the last 15 to 16 months has been building the plane in the air as we’re flying it and figuring out how to handle the disease itself,” says Denise Rose, a partner at Jackson Walker who worked on the legislation.
Leading up to this year’s legislation, there was a lot of concern from the healthcare industry about their liability for the treatment they gave under such conditions. While the added immunity doesn’t excuse all behavior, it adds a level of protection for those who administered care with good intentions and followed accepted protocols. With CDC guidelines changing throughout the pandemic, there was support for the bill from both sides of the aisle and providers.
“From the provider perspective, there’s a sense of wanting to make sure they can take care of patients, knowing that sometimes things don’t go exactly right,” Rose says.
The bill had to pass muster with trial lawyers and other patient advocates and could have potentially been controversial, as it would also protect health systems if their employees became infected, as long as the organization was acting on the best information it had at the time. But all sides came to a compromise, and the bill didn’t meet much resistance, as willful, wanton, or reckless actions would not be protected.
But with good Samaritan laws already in place protecting those trying to administer aid during emergencies, why did these doctors need added protection? Lopez says that the good Samaritan laws only cover those who don’t expect to be paid for the care they are providing. During the pandemic, most caregivers were doing their jobs and being paid so they wouldn’t fall into the good Samaritan category.
“We’re all humans trying to do the best that we can in this situation,” Rose says. “There’s got to be a very clear causation for someone to come back and say, ‘This is your fault.'”