Jon Opelt, the Executive Director from the Texas Alliance For Patient Access (TAPA), and Brian Dittmar, the Senior Regional Manager & Director of Government Relations from TMLT, discuss how the 2020 pandemic has created new legislative opportunities in 2021. This includes a pandemic relief bill, trigger immunity, and much more. To maintain social distancing, this recording was conducted virtually. Due to some portions of the podcast being hard to hear, a transcript of the conversation can be found below.
Podcast transcript: 2021 legislation and how it could affect you
Tony Passalacqua: Hello and welcome to this edition of TMLT's podcast, Tech Telemedicine Tomorrow: Answers for health care digital trends. I'm your host, Tony Passalacqua. Today I have special guest Jon Opelt. He's the executive director at the Texas Alliance for Patient Access, also known as TAPA, and Brian Ditmar from TMLT’s Claims Department. He is our senior regional claims manager and director of government relations. Our topic today is the 2021 legislative session and how it might impact you. Hello, Jon, can you tell me a little bit about yourself?
Jon Opelt, 0:32: Sure. I am the Executive Director of Texas Alliance for Patient Access, a position I’ve held for the past 17 years. TAPA is a statewide organization comprised of doctors, hospitals, nursing homes, physician liability carriers, and charity clinics. We were formed in 2003 for the purposes of passing and preserving effective medical liability reforms. In 2003, we knocked it out of the park passing what many people consider the national gold standard in medical liability language and have kept those reforms intact for the past eight legislative sessions.
Tony Passalacqua, 1:11: Brian, can you tell us a little bit about yourself?
Brian Dittmar, 1:15: You bet. Thanks, Tony. I have been working at TMLT in the Claims Department for a little over 28 years now. I've seen all types of professional liability claims asserted against physicians and health care providers, watched as the tides of liability have ebbed and flowed back in 2003 when lawsuits were out of control against physicians, as well as seeing the beneficial effects of tort reform that was passed thereafter. So, I'm currently the director of government relations, and I'm fortunate enough to work closely with Jon in pursuing our legislative initiatives.
Tony Passalacqua, 1:52: So, thank you guys very much for your introduction. So, COVID-19 has had a huge impact on our health care system, especially last year. One area of concern we hear from our physicians is how the public health crisis will impact their future liability. Are there any current COVID liability bills?
Jon Opelt, 2:08: Yes. TAPA is advancing such a bill; it is is Senate Bill Six. I don't know what the house number is going to be. But it is encapsulated inside a larger bill called a Pandemic Liability Protection Act, and so within that bill is a COVID liability protection bill, which affects physicians. And there's also another aspect called a trigger immunity bill which is forward looking. We can talk about that in more detail.
Tony Passalacqua, 2:38: Can you tell me a little bit more about the COVID liability bill?
Jon Opelt, 2:43: Sure. The code liability bill provides liability protections for physicians, health care providers, health care institutions, and first responders treating patients affected by the COVID pandemic. So, it affects both known COVID patients, suspected COVID patients, and care that in some way was affected by the COVID pandemic, meaning care that was denied or delayed or impacted by COVID. Thirty-two states have passed some type of COVID liability legislation, whether it's through executive order or state laws. Texas is not among them. Clearly, we should be. Our legislature meets every other year. So, this is the first time that we've had an opportunity to advance such legislation. Governor Abbott, earlier this month declared pandemic liability reform as an emergency issue, a priority of his. A few days ago. Lieutenant Governor Dan Patrick issued his list of priorities for the upcoming session, and he declared pandemic liability reform as one of his priorities and named it Senate Bill Six. In some respects, if you're looking for how important a bill is perceived, or how quickly it might move through the legislature, that might be indicated by the number that the legislators, be it the House Speaker or the senate leader, who is the lieutenant governor, sets. And so being that this was named Senate Bill Six that was highly encouraging to us, and leadership has told that they will give this matter swift consideration.
Tony Passalacqua, 4:22: Brian, do you have anything that you would like to add?
Brian Dittmar, 4:25: I do. I just want to emphasize that this is not an attempt at what some people might characterize as additional tort reform. Rather, this is more of us pursuing temporary protections for health care providers related solely to the pandemic. This is not something that is going to continue into infinity; these protections will expire once the pandemic liability issues expire.
Tony Passalacqua, 4:53: Jon, is there anything else that you would like to add?
Jon Opelt, 4:56: I would. The Texas legislation is retroactive, meaning it would start March 13, 2020, the date that Governor Abbott declared COVID a public health emergency. Other states chose to make emergency declarations to start date of their COVID liability laws. Incidentally, 32 states, either through executive order or state law, have granted health care workers and facilities limited liability protections in battling COVID. Texas does the same. There are basically three core elements that we believe must be in the COVID bill. It must be retroactive. It must allow for a higher standard of care, not simple negligence but gross negligence or willful and wanton that the physician had to do something that was consciously indifferent to the welfare or safety of their patient to a higher standard, the same standard applies in Good Samaritan law, and that is applied in emergency care law in Texas since 2003. And lastly, we believe that it should also affect cases that were impacted by COVID, not just a known and suspected COVID patient, but care that was affected by the pandemic. In talking with legislators, if they tried to ask us, can you give us a demarcation line saying what should apply and what should not? So, let me just start with what should not. Kansas’ COVID bill: they said that health care services not related to COVID-19 - that have not been altered, delayed, or withheld as a direct response to the COVID public health emergency - should not be protected. And I think that's reasonable. Now, let's talk about issues that we believe should be protected. And these are real examples. A non-COVID patient arrived by ambulance at a rural hospital immediately after a car wreck. His injuries required transfer to a higher-level facility. Three hospitals refused to accept the patient because they were full due to COVID. The original hospital had to treat the patient as best they could without an ICU or any specialist. Our COVID liability bill will protect them from a lawsuit for trying but failing to complete the transfer successfully.
Tony Passalacqua, 7:14: Tell me a little bit more about another example.
Jon Opelt, 7:17: A hospital bought a video baby monitor from Walmart, which was 42 miles away from the hospital. They put it in a patient's room because the patient kept pulling out his oxygen cannula causing him to become hypoxic. The hospital was short staffed because several nurses were off work with COVID. Consequently, they could not check on him as frequently as they would have liked to. The baby monitor allowed the nurses to look at the patient on video each time they pass by the nurse's station. Technically, this jimmy-rigged solution was a HIPAA violation because the screen had to face the hallway. Our COVID bill would protect the attending doctors and nurses from liability. During certain periods of a pandemic hospitals were required to suspend elective surgery and non-emergency procedures to free up bed space and PPE. While a delay in performing surgery or procedures were not acute or chronic conditions, usually without adverse events, there may be small yet legitimate risk of an adverse outcome due to delay. For example, a patient with a history of recurrent abdominal pain is diagnosed with gallstones, resulting in a partially obstructed bile duct. But without evidence of complications. Surgery is delayed for a month. If something happens within that 30-day period, we do not believe that the doctor or the hospital should be accountable because they were abiding by the mandatory no surgery procedures that the governor had invoked.
Tony Passalacqua, 8:53: Brian, is there anything that we look for specifically for our COVID liability bills?
Brian Dittmar, 8:58: I just want to reiterate what Jon said. We absolutely want a bill that provides liability protections for health care providers treating conditions other than the COVID itself, meaning healthcare providers that provide treatment that was impacted sort of the delay in diagnosis cases, perhaps a patient's cancer was not timely diagnosed because the patient could not be seen in person, could not come in for labs, that sort of thing. Those are the types of protections we're looking for.
Tony Passalacqua, 9:27: Jon, you were talking a little bit earlier about trigger immunity bills. Can you explain to our listeners what trigger immunity means?
Jon Opelt, 9:35: Sure, when we were investigating what other states have done in passing COVID bills, we saw that Maryland had invoked protections, but it could not find that they'd actually passed the COVID bill. Further research revealed that years ago they had passed what is referred to as a trigger immunity bill, which means that when a governor declares an issue a statewide public health emergency, certain liability protections would be immediately put in place for health care providers. So, Maryland has had this statute on the books for years. And after COVID, several other states - Delaware, Massachusetts, New Hampshire, and Virginia - also passed a triggered immunity bill. So, think of it this way, our COVID liability bill is retroactive; it begins March 13 and would extend until the end of the pandemic, 60 days after the governor has listed his, has written his declaration. The trigger immunity bill is forward looking. It concedes that there may be some type of a man-made or natural disaster in the future and we ought to have liabilities protections in place. We were hopeful that we could get an executive order from Governor Abbott regarding the COVID pandemic. The governor, especially, can tell did not feel that he had the statutory authority to do so. So, this would give Governor Abbott or any future governor, the ability to trigger immunity protections. I was asked about the recent winter storm that we had, would that be a candidate? Well, yes, it would. That is the sort of thing that would be protected from trigger immunity. However, in this instance, it will not because it is triggered for each event. So, there are no liability, special liability protections that would be accorded to health care providers during the recent winter storm, though we believe that they should for a variety of reasons. But that would be a piece of legislation that would be put in place that could be used years from now, if and when either the governor or the President of the United States declared a statewide public health emergency.
Tony Passalacqua, 11:54: Do we have any current legislation that includes that trigger immunity clause?
Jon Opelt, 12:01: The trigger immunity clause is something that we are introducing as part of the larger pandemic bill. Though in the broad pandemic bill, Senate Bill Six, it addresses not just health care, but product liabilities gubernatorial powers, emergency management, and safe harbor protections for businesses, schools, and churches that abide by local state and federal COVID public safety protocols. In that bill, the TAPA legal team working with the Texas Medical Association and Texas Hospital Association, spent months drafting proposed language. Two components: one was COVID liability protections for health care providers and health care institutions who operate in good faith when treating known or suspected COVID patients or patients who in some way impacted by the pandemic, and then second of all, is trigger immunity legislation where we saw the value in such legislation being introduced at this time. So, that trigger immunity language is a component of SB Six, the pandemic liability protection act.
Tony Passalacqua, 13:14: Brian, do you have anything that you would like to add?
Brian Dittmar, 13:18: Only that it's unfortunate that we don't already have this trigger liability immunity with respect to this winter storm. You've already seen news reports about lawsuits being filed against various entities. Many of those entities will already have immunities, and patients tend to look for sources of recovery. And I'm fearful that those claims could fall to health care providers during the storm. So, such a law would have provided protections for those health care providers. We may still be able to successfully defend those health care providers, but the question becomes should we really have to pay for their defense in the first place? Should there be a cause of action that should be allowed? I don't think that there should be. I think that these liability protections should have been triggered when the disaster was declared.
Tony Passalacqua, 14:10: Jon, you were talking a little bit about the retroactivity of the pandemic liability bill. Can you kind of talk to us a little bit more about that? Are there any additional hurdles that come with trying to make a bill retroactive?
Jon Opelt, 14:24: Well, there is. It’s a rarity that you see laws passed that are retroactive, but they can be constitutional. The Texas Supreme Court has said that if the subject of the lawsuit has wide public importance, that it can be retroactive, and certainly COVID would fall within that realm as being a major public health event. So, we think that we're on solid ground regarding the request that it be retroactive, and we've also introduced legislative findings that sort of drive home that point. So, it will be challenged. But I think that it will be successful, and I might add that many other states have passed retroactive COVID bills. In fact, of the 18 states that have passed COVID legislation, 11 have implemented retroactive start dates.
Tony Passalacqua, 15:20: That's very interesting. Brian, do you want to add anything to the retroactive stance on the pandemic liability bill?
Brian Dittmar, 15:29: Not really. I do believe that there is legal precedent to add a retroactivity clause. So that's something that definitely shouldn't be part of any bill that's passed.
Tony Passalacqua, 15:40: Jon, do you feel that the standard of care definition may have changed during the pandemic?
Jon Opelt, 15:46: It's very difficult to determine what standard of care should be during the pandemic. There have been so many extenuating circumstances that have altered the delivery of care making it not normal. That may be the lack of PPE for the provider to maybe the lack of testing. It may be inaccuracy of tests; the lack of medications; lack of ventilators; physicians performing care outside their normal specialty within their licensure, but outside of their normal specialty of medicine. Medicine is doing everything they can to meet this pandemic head on. Understand it is an emergency and should be treated as an emergency. In Texas, we have a higher standard for the delivery of emergency care. We think that same standard, which applies to emergency care and good Samaritan Law should apply in the delivery of care during the pandemic as well.
Tony Passalacqua, 16:50: So, physicians were completely inundated during the public health crisis, including the almost overnight closing of practices, transition to telemedicine, and delay of elective surgeries. Is that an area that physicians already have protections in or is that something that's being covered by the pandemic liability bill?
Jon Opelt, 17:09: It is being addressed by the pandemic liability bill with but note today that would not be a protection that they are normally accorded.
Tony Passalacqua, 17:15: Brian, do you have anything else to add?
Brian Dittmar, 17:27: I will echo that. Right now, physicians are subject to any other type of professional negligence claim, sort of irrespective of whether or not the care was affected by closures, delays, or postponement of elective surgeries, that sort of thing. There are no special provisions in the law currently that would prevent lawsuits against physicians in those circumstances.
Tony Passalacqua, 17:46: Jon, do you have anything else to add?
Jon Opelt, 17:49: I do. There are two federal bills that have been passed. One, the Prep Act guarantees immunity to those who manufacture or distribute, administer, use, coordinate drugs and devices used to combat COVID. That bill has existed since May, I believe. In addition to that, the Cares Act was passed, which provided immunity for health care providers who are volunteers operating in good faith and within the scope of their volunteer’s licensure. We're talking about expanding that volunteer protection to include all health care providers. Right now, as of this day, Texas health care providers, who will put their lives and livelihoods on the line in providing care to COVID patients, receive no higher protections than they otherwise would in any other circumstances. And we think that that is wrong. The public is appreciative of the work that doctors and nurses have done throughout the COVID pandemic, yet they deserve more than praise. They deserve and they need liability protection, and Senate Bill Six will give them the protections that they deserve.
Tony Passalacqua, 19:01: Brian, do you have anything else to add?
Brian Dittmar, 19:04: Only that these are extraordinary times. Health care providers need more than ordinary laws that protect them on their day-to-day basis.
Tony Passalacqua, 19:13: So, we just covered several bills that are very advantageous towards physicians. Are there any bills that could potentially hurt any liability or tort reform?
Jon Opelt, 19:23: The answer is yes. We track bills that we believe are potentially troublesome to health care providers and among them is House Bill 501, which would index non-economic cap. The cap is $250,000. it pertains to non-economic damages, hard to define subjective harm. If that bill were successful, the cap would have immediately jumped from $250,000 to $342,000. We don't think that that should pass but first and foremost is that most payouts today are not bumping up against the cap. So, we see that there's no need for increasing the cap. Second of all, that cap is $250,000 for one or more physicians and another $250,000 if there's a health care institution involved, and yet another $250,000, if a unrelated health care institution is involved. Now, in many, perhaps most lawsuits you have, more than doctors and hospitals are named; therefore, the actual cap that is in play is $500,000. So, we believe that there's adequate dollars for recovery for those who have been harmed due to some type of physician neglect.
Tony Passalacqua, 20:47: And so, this always kind of brings up an interesting question about tort reform. So, Jon, can you give us a little bit feedback on, or Brian, whoever would like to take this question, who would like to kind of talk about tort reform and why it is actually helpful to patients?
Brian Dittmar, 21:03: I'll let Jon do that. I'd also like to just add a little bit of commentary about the damages cap, I think it's important to emphasize again, that this is a cap on non-economic damages, and that an injured party still has a right to unlimited recovery, for lost wages, for loss of earning capacity, for loss of household services, for medical expenses, both past and future. None of those elements of damages are capped. This only applies to that nebulous, non-economic damages the pain and suffering awards. The cap allows us to more accurately predict claims outcomes and therefore provide more accurate pricing to our physician policyholders. I think that's an important part of the cap, and that an index, if added to the cap, would take away that predictability and would simply divert dollars from health care providers and ultimately from patients over to the trial lawyers.
Tony Passalacqua, 22:06: Jon, could you tell us what it looked like in 2003, prior to tort reform?
Jon Opelt, 22:10: Yes, it was a very difficult situation in which doctors were restricting their practices, closing their practice, could not find or afford liability coverage, which left patients without their doctor or they had to travel great distances to find care. So, it was a bad situation. It was thoroughly recognized by the Texas legislature that something had to be done, and with that came the passage of House Bill 4 for medical liability reform. And what it has done is create an incentive for physicians to practice in the state, if we have a reasonable liability climate. And so, doctors can practice in the manner in which they were clinically trained. More doctors translate to more access to care for patients in this state. It has translated into increased charity care, the availability of care in rural Texas, because we have reasonable liability laws. They don't restrict physicians from treating what is often referred to as high-risk patients, patients with high-risk conditions. All of these things are a benefit to the patient, and we think it's important that these reforms be protected.
Tony Passalacqua, 23:32: And Brian, we kind of were in a unique position as well, for TMLT. How many insurance carriers were there for medical liability leading into tort reform?
Brian Dittmar, 23:41: I think there were down to four carriers in Texas in 2003. We were the only Texas-centric carrier. There were a few other national carriers, but out of the dozens and dozens that existed in years past and of the dozens that exist now, most pulled out of Texas because it was an unprofitable place to do business as a professional liability insurance carrier.
Tony Passalacqua, 24:04: Jon, just to reiterate what you've just said that actual cost of doing business in Texas actually caused a lot of physicians to leave this area and move to states that had better tort reform.
Jon Opelt, 24:16: It did. We saw physicians who retired early or relocated to another state, people who restricted their practice to remove treatment for high-risk conditions. For instance, an obstetrician would not treat patients, pregnant patients with diabetes. In the Rio Grande Valley, we could not get an orthopedic surgeon to treat a broken leg suffered by a minor in an auto accident. The examples just go on and on about the restriction of care, how much more difficult it was to get care, how far patients had to travel to get the care they needed, because of the crisis that evolved due to the inability to find or for liability coverage.
Tony Passalacqua, 25:09: So, I know we've talked a little bit about House Bill 501, which is talking about index in the non-economic caps. How about House Bill 1089? Is there anything important about that bill that our listeners should know about?
Jon Opelt, 25:22: House Bill 1089 relates to liability under the Texas Tort Claims Act, and it would make significant changes to that act, all of them benefiting people that sue governmental hospitals. We strongly oppose the bill. HB 1089 would raise the cap, current Tort Claims Act, from $100,000 to $250,000, which in turn would reduce the ability for rural hospitals and county hospitals to deliver care or unreimbursed care that you would allow for punitive damages, which presently are not allowed under the Texas Tort Claims Act. It would make insurance policies discoverable, when currently they are not. It would make significant liability expansions that apply to police. It does not affect the health care community but affects communities at large. All told, we think that 1089 is not a good piece of legislation, and we hope to see it defeated.
Tony Passalacqua, 26:25: Brian, do you have anything that you'd like to add to that?
Brian Dittmar, 26:28: I agree with Jon. This is a bill that we cannot support. There are protections that are rightfully provided to these rural and county hospitals, and raising their costs does nothing good for the Texas patient.
Tony Passalacqua, 26:50: Are there any other bills that either of you would like to discuss?
Brian Dittmar, 26:53: I think there is one other bill that we haven't talked about yet. Senate Bill 232 is a bill that seeks to allow plaintiff attorneys to have a court determine whether or not their particular set of circumstances represents a health care liability claim before they are required to produce an expert report. And on the face of that it seems reasonable. Plaintiffs shouldn't be forced to undergo the expense of producing an expert report, but the law as written has a lot of room for abuse. In other words, we can foresee this law being used to delay the resolution of lawsuits. There's also no provision in the law for an appeal of the initial ruling by the trial court. In other words, if a trial court says that if this particular set of circumstances does not represent a health care liability claim and thus trigger our tort reform protections, there is no way as the way the law is currently drafted to appeal that decision before the end of the case, before the case actually goes to trial and is decided by a jury, that sort of thing. So, we do have significant concerns about Senate Bill 232.
Tony Passalacqua, 28:03: So, what's one takeaway, Jon, that you would like our listeners to leave with after this podcast?
Jon Opelt, 28:09: This is going to be a very challenging legislative session. We have an opportunity to pass some very needed COVID liability protections. We have a, I think, a unique opportunity to pass a trigger immunity bill, and certainly the recent winter storm shows why such a bill is needed. On the flip side, we're playing defense against yet another effort to index the non-economic cap and a bill that would erode the Texas Tort Claims Act, which make it more difficult for county hospitals and rural providers to provide care. So, it's going to be an active and challenging session and wish us well.
Tony Passalacqua, 28:46: Brian, how about you? Is there anything that you would like our listeners to leave with?
Brian Dittmar, 28:50: I think it's important to recognize that [in] every legislative session there are efforts by our adversaries to dilute or to remove tort reform protections for health care providers. We saw it last session. We've seen it every session since 2003. It's a constant effort by the health care community to maintain those protections. As we get further away from 2003, there are fewer and fewer legislators that were there at the time that recall how bad things were in Texas at the time. So, we need to constantly reeducate lawmakers about the very great benefits that have been provided by our liability protections.
Tony Passalacqua, 29:31: Thank you for listening to our podcast. If you are a policyholder, please feel free to contact us with any questions by calling 1-800-580-8658 or checking out our resources at tmlt.org and clicking on our Resource Hub.
Tony Passalacqua, 29:44: Thank you, Jon. Thank you, Brian, for your time.