By: Culberson H.B. No. 529
73R2773 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to proof of a health care liability claim.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 1.03(a)(3), Medical Liability and
1-5 Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
1-6 Civil Statutes), is amended to read as follows:
1-7 (3) "Health care provider" means any person,
1-8 partnership, professional association, corporation, facility, or
1-9 institution duly licensed or chartered by the State of Texas to
1-10 provide health care as a registered nurse, hospital, dentist,
1-11 podiatrist, pharmacist, or nursing home, or an officer, employee,
1-12 or agent thereof acting in the course and scope of his employment,
1-13 except that this subdivision does not apply to Subchapter G of this
1-14 Act.
1-15 SECTION 2. Subchapter G, Medical Liability and Insurance
1-16 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
1-17 Statutes), is amended to read as follows:
1-18 SUBCHAPTER G. PROOF <RES IPSA LOQUITUR>
1-19 Sec. 7.01. DEFINITION. In this subchapter, "health care
1-20 provider" means any person, including a partnership, professional
1-21 association, corporation, facility, or institution licensed,
1-22 certified, registered, or chartered by this state to provide health
1-23 care as a registered nurse, licensed vocational nurse, emergency
1-24 medical services personnel or provider, hospital, dentist,
2-1 podiatrist, pharmacist, chiropractor, physical therapist, or
2-2 nursing home, or an officer, employee, or agent of those persons,
2-3 acting in the course and scope of duties, employment, or agency.
2-4 Sec. 7.02. APPLICATION OF RES IPSA LOQUITUR. The common-law
2-5 doctrine of res ipsa loquitur shall only apply to health care
2-6 liability claims against health care providers or physicians in
2-7 those cases to which it has been applied by the appellate courts of
2-8 this state as of August 29, 1977 <the effective date of this
2-9 subchapter>.
2-10 Sec. 7.03 <7.02>. JURY INSTRUCTION AUTHORIZED IN CERTAIN
2-11 CASES. (a) In a jury trial involving a health care liability
2-12 claim against a physician or hospital for injury to or death of a
2-13 patient in which the court determines that the following
2-14 instruction is reasonably applicable to the facts, the court shall
2-15 provide the following instruction in the court's charge to the
2-16 jury:
2-17 "A finding of negligence may not be based solely on
2-18 evidence of a bad result to the patient in question,
2-19 but such a bad result may be considered by you, along
2-20 with other evidence, in determining the issue of
2-21 negligence; you shall be the sole judges of the weight,
2-22 if any, to be given to any such evidence."
2-23 (b) Nothing in Subsection (a) of this section shall affect
2-24 the existing law regarding the applicability or nonapplicability of
2-25 the doctrine of res ipsa loquitur to a health care liability claim.
2-26 (c) The determination of whether the instruction authorized
2-27 by Subsection (a) of this section is reasonably applicable to the
3-1 facts shall be made by the trial court in its sole discretion, and
3-2 such determination by the trial court shall be reviewable by an
3-3 appellate court only for an abuse of such discretion.
3-4 Sec. 7.04. STANDARD OF PROOF IN CERTAIN CASES. In a suit
3-5 involving a health care liability claim against a physician or
3-6 health care provider for injury to or death of a patient, the
3-7 claimant may prove that the treatment or lack of treatment by the
3-8 physician or health care provider departed from accepted standard
3-9 of medical care or health care only if the claimant shows by clear
3-10 and convincing evidence that the physician or health care provider
3-11 did not use the degree of care and skill that:
3-12 (1) may reasonably be expected of a prudent, competent
3-13 physician or health care provider in the same or similar
3-14 circumstances; and
3-15 (2) is commensurate with the care and skill of other
3-16 physicians or health care providers of similar training,
3-17 experience, or certification.
3-18 Sec. 7.05. CONFLICT WITH TEXAS RULES OF CIVIL EVIDENCE. (a)
3-19 To the extent that this subchapter conflicts with the Texas Rules
3-20 of Civil Evidence, this subchapter controls.
3-21 (b) Notwithstanding Section 22.004, Government Code, the
3-22 supreme court may not amend or adopt rules in conflict with this
3-23 subchapter.
3-24 SECTION 3. (a) Except as provided by Subsection (b) of this
3-25 section, this Act takes effect September 1, 1993.
3-26 (b) This Act takes effect only if Subchapter G, Medical
3-27 Liability and Insurance Improvement Act of Texas (Article 4590i,
4-1 Vernon's Texas Civil Statutes), is in effect on the effective date
4-2 of this Act. If, on the effective date of this Act, Subchapter G,
4-3 Medical Liability and Insurance Improvement Act of Texas (Article
4-4 4590i, Vernon's Texas Civil Statutes), has expired, this Act has no
4-5 force or effect.
4-6 (c) This Act applies only to a suit that is filed on or
4-7 after the effective date of this Act. A suit that is filed before
4-8 the effective date of this Act is governed by the law in effect at
4-9 the time the suit is filed, and that law is continued in effect for
4-10 that purpose.
4-11 SECTION 4. The importance of this legislation and the
4-12 crowded condition of the calendars in both houses create an
4-13 emergency and an imperative public necessity that the
4-14 constitutional rule requiring bills to be read on three several
4-15 days in each house be suspended, and this rule is hereby suspended.