Originally posted on DallasNews.com.
On Tuesday, Gov. Greg Abbott, Lt. Gov. Dan Patrick and Speaker of the Texas House Dennis Bonnen asked U.S. Senate Majority Leader Mitch McConnell to extend extra liability protections to business owners who are reopening and health care providers treating coronavirus patients.
“Without liability protections, many business owners and those in healthcare could be subjected to costly lawsuits promulgated by those intent on exploiting this crisis. This kind of frivolous litigation would be financially devastating for any person that is already working overtime to stay afloat,” the men, known colloquially as “the Big Three,” wrote Tuesday. “Asking employers to reopen their businesses or provide these necessary healthcare services while leaving them vulnerable to the threat of predatory litigation would be unjust.”
The request comes as business owners affected by the coronavirus mull how to protect themselves from coronavirus-related lawsuits, and Democrats and Republicans in Congress debate whether to include broad liability protections in the next financial relief package.
On April 3, the Texas Health Care Association, Texas Medical Association, Texas Hospital Association and several other health care groups asked Abbott to take action on the state level and issue an executive order extending additional liability protections to health care providers treating coronavirus patients.
The associations had two requests: first, that Abbott issue an executive order expanding a state code that provides liability protection for disaster relief volunteers to include “all physicians, health care providers, and health care facilities” treating COVID-19 patients; and second, that the state bar any coronavirus-related lawsuits against health care providers until Sept. 1.
The Trump administration already extended some liability protections to health care workers as the pandemic spread across the United States. But those protections apply only to the manufacture and distribution of certain medical products, said Texas Health Care Association President Kevin Warren.
“These measures do not protect doctors and nurses engaged in the triaging, diagnosing and treatment of known or suspected COVID-19 patients or the health care facilities they work in,” said Warren, who signed the letter to Abbott.
While he added that outside of emergency care treatment Texas doctors and nurses have never received these heightened protections before, Warren pointed to other states that have taken similar steps in recent weeks.
Abbott has not issued an executive order on this top, however, choosing instead to ask federal authorities to step in. Also this week, 21 Republican attorneys general including Texas’ Ken Paxton sent a similar letter to Congress.
“As we reopen our economies, the need for a stable, predictable legal environment has never been greater,” the attorneys general wrote. “Civil liability protections should not, however, be extended to businesses engaging in willful misconduct, reckless infliction of harm or intentional infliction of harm. We believe criminal penalties, regulatory fines and agency oversight should be able to capture bad actors and civil lawsuits should be available for any citizens hurt by a business or individual acting with disregard for safety.”
Opponents to handing over this increased immunity argue it’s already difficult to win a medical malpractice lawsuit in Texas, and add that the Texas Legislature should be making these decisions.
Jim Perdue Jr., president elect of the Texas Trial Lawyers Association, argued these Texas groups are asking for more than the increased liability protections governors in other states like New York have extended. Plus, he believes Abbott does not have the authority to issue such a sweeping edict.
“What this letter asks for is fundamentally against the Texas Constitution or any proper scope of executive authority,” Perdue said. “It’s kind of bad to see an effort to use an emergency to change law through executive action.”
That decision should remain with state lawmakers, he said, who have already significantly limited a patient’s ability to sue their health care providers. But Perdue said his group has not reached out to Abbott, who allowed some businesses to begin slowly reopening Friday.
“The orders to reopen the state are based on a predicate that we have enough [hospital] beds and we’re not in an emergency situation,” he said. “The governor has got more important things to handle about getting the economy restarted without having to address a select group of special interests.”
