While health care professionals and other essential workers fight the COVID-19 pandemic from the front lines, they should not be worried about being sued for good-faith efforts they make in an attempt to save a life.  However, some personal injury lawyers see the current crisis as an opportunity to cash in.  The first lawsuits targeting health care providers, employers, retailers and other businesses for COVID-related injuries have already been filed.

Congress has provided limited liability protection for volunteer health care workers through the CARES Act, for manufacturers of N-95 masks through the Families First Coronavirus Response Act, and for some health care workers through the PREP Act.  Despite these protections, legislative efforts may be needed at the state level – including in Texas when the Legislature returns to the Capitol in January 2021.

The American Tort Reform Association has published a white paper exploring legal liability concerns related to the COVID-19 pandemic with potential policy solutions for states to consider. The main policy prescriptions include legislation:

• Limiting the liability of businesses that design, manufacture, sell, or donate protective equipment, medical devices, drugs, or other products for use by health care providers and facilities (and possibly the general public) in response to a declared public health emergency;
• Providing health care workers with greater discretion to make decisions about medical care without the fear of liability during a pandemic or other health emergency; and,
• Prohibiting lawyers from suing employers on behalf of individuals who did not develop COVID-19, were asymptomatic, or experienced common flu-like symptoms.

Read the full white paper here.

By D’Anne Buquet

As the Coastal Bend hunkers down to combat COVID-19, this community is experiencing quite a few positive effects. More than ever, people are making a conscious effort to support local businesses that remain open. Businesses are adapting to meet their customers’ needs with new innovative practices such as contact-free, ultra-sanitized shopping experiences. Our local grocery stores and all their hardworking employees are working tirelessly to stock shelves and clean surfaces. And healthcare providers are at the frontline, caring for thousands of community members who could potentially be carrying one of the most infectious and dangerous viruses of our time.

Just scrolling through social media, you’ll see a surge of uplifting messages with #supportlocal posted by citizens showing their appreciation and support for those working every day to make sure the rest of us get through this crisis.

But once we begin to come out of this, should we expect a tidal wave of lawsuits? Lawsuits targeting those local businesses who did all that they could to provide their customers with services and products when they needed them most? Lawsuits targeting doctors, nurses and hospitals who risked their lives to care for infected patients and all other medical needs?

Unprecedented, the COVID-19 pandemic gives trial lawyers the opportunity to create new and novel theories to target businesses, healthcare providers, and individuals. Whether accusing a doctor of a late diagnosis or charging a local restaurant with negligence, there are numerous scenarios for a greedy lawyer to take advantage of a public health crisis.

The next McDonald’s “hot coffee” lawsuit may be coming. We must be on watch and encourage each other to remember how the community came together during the crisis. We must remember how businesses are going the extra mile to provide a safe and healthy environment in a never-before-seen, unpredictable environment. Doctors and nurses are working longer hours with fewer supplies but continue to deliver the best care they could in the situation.

As lawyers will challenge laws, we must work equally as hard to preserve the tort reforms we’ve made to protect our local businesses, healthcare providers, and individuals. These reforms have helped the Coastal Bend thrive with new local businesses and the jobs they create as well as access to affordable healthcare.

This pandemic is hurting us enough. Let’s not continue with more hurt by filing abusive lawsuits against the very community members who got us through it.

D’Anne Buquet is the Executive Director of Bay Area Citizens Against Lawsuit Abuse, a grassroots watchdog organization made up of citizens dedicated to raising awareness of the costs and effects of lawsuit abuse. www.bacala.net

World Health Day was last week, on April 7, and there couldn’t be a more appropriate time to recognize the work and sacrifices of the healthcare profession across the globe.

In the past few weeks, we’ve seen these men and women run toward danger, working around the clock and putting their own lives on the line to help those affected by COVID-19.

In Texas, Gov. Greg Abbott has created a task force to help ensure these professionals have the personal protection equipment they need and that their hospitals have the resources necessary to respond to a surge in coronavirus patients. The governor has also issued orders easing licensing requirements for healthcare workers to ensure Texas has the medical workforce it needs in the coming weeks.

But there’s an additional layer of protection that we should grant to the men and women on the frontlines of this pandemic: liability protection.

TLR recently joined with the Texas Alliance for Patient Access, Texas Medical Association, Texas Hospital Association and others to request that Gov. Abbott issue an executive order providing liability protection during the declared disaster for physicians and other healthcare providers.

“These healthcare professionals are literally risking their lives to care for Texans suffering from a lethal virus. At the same time, plaintiff attorneys are already advertising for clients to file lawsuits related to the healthcare industry’s response to the virus. The citizens of Texas cannot reasonably expect healthcare professionals to work under the threat of both death and litigation. Under these circumstances, it would be entirely reasonable for healthcare workers to ignore—rather than answer—the call to service, leaving Texans without necessary care during a time of crisis.”

With these extraordinary circumstances, and with all that we are asking of our medical professionals, it is critical we assure these individuals they will not face a lawsuit unless their conduct was reckless or they engaged in intentional, wanton or willful misconduct.

Additionally, given the fluidness of this situation, we also believe COVID-19-related healthcare lawsuits should be postponed until after the crisis to allow the industry to continue providing the critical care Texans need right now.

Healthcare professionals are going above and beyond the call of duty to help their fellow Texans in the face of this pandemic. It is the least we can do to protect them from the added stress of an unnecessary lawsuit at this time.

Read here: https://www.tortreform.com/for-the-record/protecting-our-frontlines/_term=READ%20MORE

Via the Killeen Daily Herald, March 19, 2020

By DAWN BUCKINGHAM | STATE SENATOR, DISTRICT 24

Hello friends, as your state senator for District 24 I’d like to share a few thoughts about the importance of Sunshine Week, and government transparency. Perhaps at no time in history, in my opinion, has the need for openness and transparency been more important.

Today’s headlines are filled with claims of “fake news” and “bias” in our news media, leaving all of us to wonder what information we read, hear or see on television is real and what’s not. I believe that uncertainty is a large part of the reason more and more people are distrustful of government, its leaders and the news media, and choose to “tune out” rather than “tune in,” and “get involved.”

In my opinion, this is neither helpful nor healthy. I believe an uninformed electorate is dangerous for the values we believe in as proud Texans and Americans. Protecting open records, open meetings and public notices is something we must all support along with the constitutional protections of a free and open press.

During the 86th legislative session, I took the lead to try and make sure some of the TV advertisements you are bombarded with at home regarding the safety of some of the medications you may be taking are not “deceptively” portrayed as dangerous by some legal advertisements.

Senate Bill 1189, which I authored, will significantly stop this fraudulent practice by requiring transparency and accountability for these attorney-paid ads. This legislation requires these types of advertisements to properly warn patients it is dangerous to stop taking certain prescribed medications before consulting with your doctor.

The “teeth” in the bill provides civil penalties on those who intentionally market these dangerous and deceptive ads. It is simply wrong to allow deceptive advertising that might unnecessarily scare people to the point of stopping taking certain necessary medications.

A survey conducted by Texans Against Lawsuit Abuse reported 82 percent of doctors surveyed found that such ads could lead patients to stop taking their prescribed medications and 66 percent of their patients questioned their recommended course of treatment because of something they saw on TV, in a deceptive lawsuit ad.

The premise is simple: require common-sense disclaimers to be included in advertising to make sure Texans are not harmed, or misled, by harmful and deceptive advertising. And, it was greatly needed. According to a report by the American Tort Reform Association, TV viewers were subjected to more than 190,000 advertisements for legal services over six months in 2018, in Texas’ three largest media markets.

As an oculoplastic and reconstructive surgeon, I know how dangerous abruptly ending certain prescribed medications without doctor approval can be. As a mother of two, I also know how effectively deceptive some of these advertisements can appear. And, as a state senator who has heard the cries from patients in Senate District 24 for help, I knew the time for action was overdue.

I’m very proud to report that a majority of my colleagues in both the House and Senate agreed and voted to send SB 1189 to Gov. Gregg Abbott. On June 7, 2019, this improvement in government transparency became a state law in Texas.

By Jon Opelt

Texas’ physician workforce is growing at a record pace, far greater than the state’s impressive population growth. The Texas Alliance for Patient Access cites the state’s 2003 landmark medical liability reforms as a primary catalyst.

The ratio of Texas patient-care physicians for every 100,000 people has grown uninterrupted for 10 straight years, according to data released by the Texas Department of State Health Services.

“Doctors new to the state have told us they came to Texas because of our more hospitable legal climate,” said Jon Opelt, Executive Director of Texas Alliance for Patient Access. “Protection of the reforms will further the growth while weakening the reforms will slow or reverse those gains,” he said.

Opelt noted that Texas’ physician workforce expanded at more than double the rate of the state’s population over the past decade. This development is significant given the growth in population and is critically important for improving access to medical care, he said.

Primary care is the largest specialty in the state, numbering 19,097 practitioners, according to the Texas Medical Association. During the past 10 years, the ranks of Texas primary care physicians grew 1.7 times faster than the state’s population.

Research suggests that patients with high-risk conditions, Hispanics, patients in rural areas, the uninsured and low-income families have been the greatest beneficiaries of the reforms and would be most affected by any weakening of the state’s medical liability laws, Opelt said.  

Read more here:  https://www.kveo.com/news/new-texas-doctors-set-record-for-states-physician-to-patient-ratio/

Jon Opelt is the Executive Director of the Texas Alliance for Patient Access, a statewide coalition of doctors, hospitals, clinics, nursing homes and physician liability insurers.

By Karen Easterling

Texas is a beacon for attracting business expansions, relocations, investment and jobs. That’s reflective of the state’s commitment to a business-friendly climate through policies and practices like lower taxes and a predictable regulatory framework. Smart, common-sense legal reforms are another cornerstone of our success.

By targeting abusive lawsuits and questionable legal tactics that plagued our civil justice system for decades, Texas lawmakers have helped ensure our courts are a place for justice, not greed. And, our progress is earning our state well-deserved recognition.

Each year, the American Tort Reform Foundation’s Judicial Hellholes report highlights areas of the country where lawsuit abuse is rampant, and justice is not evenly applied. Texas not only avoided the 2019 Judicial Hellholes list but was recognized as a “Point of Light” for positive lawsuit reforms enacted during last year’s legislative session.

Specifically, the Legislature’s move to rein in deceptive lawyer health care advertising (Senate Bill 1189) and to bring transparency to contingency fee contracts between local governments and personal injury lawyers (House Bill 2826) are two points of light for the state this past year.

For years, all you had to do was turn on your television to catch plenty of personal injury lawyer ads featuring “medical alert,” “public service announcement” or “drug alert.” Such advertising can mislead or scare people, encouraging medical decisions that basically make lawyers your doctors. In response, Texas lawmakers passed SB 1189 by state Sen. Dawn Buckingham. 

Thanks to SB 1189, lawsuit ads relating to pharmaceutical drugs or medical devices are now required to clearly state that consumers should consult their doctor before stopping a medication, among other consumer protection language.

In addition, ads are not allowed to display logos of federal or state agencies in a manner suggesting the advertisement was presented by such an agency. And, these ads must disclose they are paid advertisements for legal services, among other requirements.

In another point of light, HB 2826 is aimed at addressing a growing industry among some personal injury lawyers who were recruiting local governments to file lawsuits, many of them against companies.  The process lacked accountability and transparency as these contingency fee agreements were often made with limited public input or a competitive bidding process.

The proliferation of these agreements also reportedly resulted in reputable businesses, particularly contractors and subcontractors, shying away from doing business with local governments. HB 2826 by Rep. Greg Bonnen will bring much-needed sunshine into this process.    

This new law now helps ensure that the hiring of contingency fee lawyers is openly discussed in a public forum.  Under HB 2826, the public now has the ability to monitor whether particular litigation was worthwhile, whether the best lawyers were hired at a fair rate, and whether any improper relationships existed between a political subdivision and lawyers.

It would be easy to chalk up these and previous lawsuit reforms as wins and call it game over on our efforts against lawsuit abuse in Texas, but that’s not the case.

Although Texas has made strides in reining in lawsuit abuse, we’ve seen some personal injury lawyers time and again find new loopholes or avenues to pursue questionable lawsuits and legal practices.  So, vigilance is key. 

With election season upon us, knowing your candidates’ position on lawsuit reform is vital.  Before you cast a ballot, make it a point to dig deeper to educate yourself on candidates from the top of the ballot down to local races.  Casting an informed ballot is one way we as voters can help ensure our state defends and advances common-sense lawsuit reform.

Lawsuit abuse affects us all by reducing access to health care, driving up the cost of consumer goods, and limiting job creation. When it comes to lawsuit abuse, we all pay – and we all lose. We’re a “point of light” today, but we can quickly find ourselves back on the “judicial hellholes” list without continued engagement, vigilance and our votes.

Karen Easterling is a small business owner and board member of Citizens Against Lawsuit Abuse of Central Texas.

Texas, which once had the biggest lawsuit abuse problem in the country, is now a leader in the lawsuit reform movement. 

The changes made have helped:

• Create and retain jobs
• Small employers flourish
• Bring balance and fairness to our courts
• Improve access to health care, especially in many underserved areas of the state

The progress made has been hard-fought making it important we elect officials who work just as hard to defend those reforms that have ensured our courts are used for justice, not greed. These reforms have helped Texas become a place where businesses want to be – and that means more jobs and a stronger economy. We must continue to protect these reforms and elect officials who will, too.

As the March elections approach and you consider your options on the ballot, do you know where your candidates stand? Every day candidates talk about the need for continued job growth and the importance of access to health care– each vitally important to the continued wellbeing of Texans.  But are your candidates willing to protect lawsuit reform and fight against attempts by some personal injury lawyers to undo those reforms?

Before you head to the ballot box make sure to research your candidates and ask them questions.

Early voting starts on February 18and ends February 28, 2020.

Election Day is March 3, 2020.

If you need to check if you’re already registered or find out where you need to vote, click HERE.

For more voting information on the upcoming primary elections, visit VoteTexas.gov.

Earlier this month, Texas was named the 2019 State of the Year by Business Facilities Magazine.  The state is now the first to win the award for the fourth time after receiving the designation in 2007, 2012 and 2016.  The magazine’s editor in chief, Jack Rogers, called Texas an “economic development success story.”

In a radio interview on News Radio 1080 KRLD in Dallas-Fort Worth, Rogers went even further stating, “Business Facilities doesn’t have a State of the Decade Award, but if we did, Texas would be the hands-down winner.”  Listen to the interview here.

Texas’ place as a leader in job creation and innovation is due in part to legal reforms implemented over the past 20-plus years.  Employers are attracted to the positive business climate that lawsuit reforms have helped create.  Curbing lawsuit abuse helps small businesses flourish.

Following the Business Facilities announcement Governor Greg Abbott stated, “The Texas success story is just beginning. Together, we will continue to cultivate an environment of economic growth and opportunity that creates a brighter future for every Texan.”

Governor Abbott is right.

Texans must work together to ward off relentless efforts to undermine reform or create new ways to sue.  For Texas to keep its status as #1 in the country, policymakers must be reminded: Reform Works.

As Texans prepare to celebrate the holidays at office parties and social gatherings, it’s important for party hosts to keep liability in mind as they plan celebrations especially those that involve alcohol. Partygoers should be encouraged to take personal responsibility for their own actions as a way to curb lawsuit abuse this holiday season.

Following these suggestions can help avoid lawsuits being served at your holiday party:

• For parties in your home, plan transportation for your guests, including designated drivers, taxis or coordinating ride shares for a safe ride home, and have ample and appealing nonalcoholic beverages for your designated drivers;
• For office parties, consider a ride share or taxi service for your employees;
• Avoid providing a self-service bar, opting instead for a bartender well-versed in identifying underage and intoxicated drinkers;
• Halt the flow of alcoholic beverages long before the party ends; and
• Take action if a guest does overindulge, arranging for transportation home.

The 2019-2020 Judicial Hellholes report from the American Tort Reform Association (ATRA) is out!

The report identifies areas of the country where lawsuit abuse is rampant and justice is not evenly applied.   While questionable legal practices and junk lawsuits continue to be a problem in Texas, our state’s work to shed its reputation as the nation’s lawsuit abuse poster child continues to make the grade: Texas is not on this year’s hellholes list.

Texas not only avoided the Judicial Hellholes list but was recognized for positive lawsuit reforms enacted by our state Legislature in 2019.

However, other areas, including neighbors to the east in Louisiana and north in Oklahoma, still have their work cut out for them.  

Check out the complete report here and follow the conversation online using #JudicialHellholes.