By: Kamel H.B. No. 540
73R1930 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to review of medical malpractice claims.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Title 6, Civil Practice and Remedies Code, is
1-5 amended by adding Chapter 144 to read as follows:
1-6 CHAPTER 144. REVIEW OF MEDICAL MALPRACTICE CLAIMS
1-7 Sec. 144.001. DEFINITIONS. In this chapter:
1-8 (1) "Claimant" means a party, including a plaintiff,
1-9 counterclaimant, cross-claimant, or third-party claimant, making a
1-10 medical malpractice claim.
1-11 (2) "Respondent" means a party, including a
1-12 counterdefendant, cross-defendant, or third-party defendant,
1-13 against whom a claimant is making a medical malpractice claim.
1-14 (3) "Health care provider" means a person who provides
1-15 health care under a license issued by a state.
1-16 (4) "Medical malpractice claim" means a claim against
1-17 a health care provider alleging that the health care provider
1-18 failed to comply with the applicable standard of care in the
1-19 diagnosis, care, or treatment of a patient and alleging that injury
1-20 to or death of a patient resulted from that failure, without regard
1-21 to whether the claim is based on tort or contract principles.
1-22 (5) "Medical malpractice claim review panel" means a
1-23 panel appointed under Sections 144.003 and 144.004.
1-24 (6) "Physician" means a person licensed to practice
2-1 medicine under the Medical Practice Act (Article 4495b, Vernon's
2-2 Texas Civil Statutes).
2-3 Sec. 144.002. NOTICE OF CLAIM. (a) Before filing a medical
2-4 malpractice claim in a court in this state, the claimant must
2-5 notify the respondent of the claim in writing and seek review of
2-6 the claim in accordance with this chapter.
2-7 (b) A notice given under Section 4.01(a), Medical Liability
2-8 and Insurance Improvement Act of Texas (Article 4590i, Vernon's
2-9 Texas Civil Statutes), may be used to comply with the requirement
2-10 of this section if the notice specifically requests review under
2-11 this chapter.
2-12 Sec. 144.003. MEDICAL MALPRACTICE CLAIM REVIEW PANEL; CHAIR.
2-13 (a) Review of a medical malpractice claim under this chapter shall
2-14 be conducted by a medical malpractice claim review panel appointed
2-15 in accordance with this section.
2-16 (b) The claimant's notice under Section 144.002 must include
2-17 the name of a physician who will serve on the medical malpractice
2-18 claim review panel on behalf of the claimant.
2-19 (c) Not later than the 10th day after the date the
2-20 respondent receives the claimant's notice, the respondent shall
2-21 acknowledge the notice in writing and shall notify the claimant of
2-22 the name of a physician who will serve on the medical malpractice
2-23 claim review panel on behalf of the respondent.
2-24 (d) Not later than the 30th day after the date the
2-25 respondent receives the claimant's notice, the physicians named by
2-26 the parties shall select a third physician to serve on the medical
2-27 malpractice claim review panel.
3-1 (e) Not later than the 30th day after the date the
3-2 respondent receives the claimant's notice, the three physicians
3-3 shall select an attorney to serve as chair of the medical
3-4 malpractice claim review panel. The attorney shall advise the
3-5 panel but may not vote on decisions made by the panel. The panel
3-6 shall notify each party to the claim that all the members of the
3-7 panel have been selected.
3-8 Sec. 144.004. COURT APPOINTMENT OF PANEL MEMBERS. (a) If
3-9 the claimant is unable to obtain a physician willing to serve on
3-10 the medical malpractice claim review panel, a court in which the
3-11 medical malpractice claim could be tried shall, on petition of the
3-12 claimant, appoint a physician to serve on the panel on behalf of
3-13 the claimant.
3-14 (b) If the respondent is unable or unwilling to obtain a
3-15 physician willing to serve on the medical malpractice claim review
3-16 panel, a court in which the medical malpractice claim could be
3-17 tried shall, on petition of any party, appoint a physician to serve
3-18 on the panel on behalf of the respondent.
3-19 (c) If the physicians selected by the parties under Section
3-20 144.003 or appointed by the court under Subsection (a) or (b)
3-21 cannot agree on a third physician to serve on the medical
3-22 malpractice claim review panel, a court in which the medical
3-23 malpractice claim could be tried shall, on petition of either
3-24 member of the panel or any party, appoint the third physician.
3-25 (d) If the physician members of the medical malpractice
3-26 claim review panel cannot agree on an attorney to serve as chair of
3-27 the panel under Section 144.003(e), a court in which the medical
4-1 malpractice claim could be tried shall, on petition of any member
4-2 of the panel or any party, appoint the attorney.
4-3 Sec. 144.005. EVIDENCE. (a) Not later than the 90th day
4-4 after each member of the medical malpractice claim review panel has
4-5 been selected under Section 144.003 or 144.004, each party shall
4-6 submit to the panel written evidence to be considered by the panel
4-7 and shall mail or deliver a copy of that evidence to the opposing
4-8 party.
4-9 (b) The evidence may include any written evidence permitted
4-10 by the medical malpractice claim review panel, including relevant:
4-11 (1) medical charts;
4-12 (2) x-rays;
4-13 (3) reports of the results of laboratory tests;
4-14 (4) excerpts of treatises, studies, and reports; and
4-15 (5) depositions and affidavits.
4-16 Sec. 144.006. DISCOVERY. At any time after each member of
4-17 the medical malpractice claim review panel has been selected and
4-18 before both parties have submitted evidence under Section 144.005,
4-19 the parties may conduct discovery relating to the medical
4-20 malpractice claim in accordance with the Texas Rules of Civil
4-21 Procedure. On petition of any party, a court in which the medical
4-22 malpractice claim could be tried may compel discovery in accordance
4-23 with the Texas Rules of Civil Procedure.
4-24 Sec. 144.007. WITNESSES. The medical malpractice claim
4-25 review panel may call and hear witnesses. At the request of at
4-26 least two members of the panel, the clerk of a court in which the
4-27 medical malpractice claim could be tried shall issue a subpoena for
5-1 a witness in accordance with Rule 176, Texas Rules of Civil
5-2 Procedure.
5-3 Sec. 144.008. MEDICAL MALPRACTICE CLAIM REVIEW PANEL REPORT.
5-4 (a) Not later than the 30th day after the date on which each party
5-5 has submitted evidence in accordance with Section 144.005, the
5-6 medical malpractice claim review panel shall issue a written report
5-7 stating that:
5-8 (1) the evidence supports the conclusion that the
5-9 respondent failed to comply with the applicable standard of care as
5-10 alleged by the claimant;
5-11 (2) the evidence does not support the conclusion that
5-12 the defendant failed to comply with the applicable standard of care
5-13 as alleged by the claimant; or
5-14 (3) there is a material issue of fact as to whether
5-15 the defendant failed to comply with the applicable standard of care
5-16 as alleged by the claimant.
5-17 (b) If the report states that the evidence supports the
5-18 conclusion that the respondent failed to comply with the applicable
5-19 standard of care, the report must state whether the failure was or
5-20 was not a factor in the patient's injury or death.
5-21 (c) If the report states that a failure to comply with the
5-22 applicable standard of care was a factor in the patient's injury or
5-23 death, the report must also state whether the patient suffered:
5-24 (1) a disability and the extent and duration of the
5-25 disability; or
5-26 (2) a permanent impairment and the percentage of any
5-27 impairment.
6-1 Sec. 144.009. REPORT AND TESTIMONY OF PANEL MEMBER
6-2 ADMISSIBLE AS EVIDENCE. A report of a medical malpractice claim
6-3 review panel issued under Section 144.008 and relevant testimony of
6-4 members of the panel are admissible as evidence in an action
6-5 brought by a claimant on the medical malpractice claim.
6-6 Sec. 144.010. COMPENSATION OF PANEL. (a) A physician
6-7 member of a medical malpractice claim review panel is entitled to
6-8 receive $25 per day, not to exceed $250, for all work performed as
6-9 a member of the panel, other than testimony provided in an action
6-10 brought on the medical malpractice claim.
6-11 (b) The attorney member of a medical malpractice claim
6-12 review panel is entitled to receive $100 per day, not to exceed
6-13 $2,000, for all work performed as chair of the panel other than
6-14 testimony provided in an action brought on the medical malpractice
6-15 claim.
6-16 (c) The physician and attorney members of the medical
6-17 malpractice claim review panel are entitled to reimbursement for
6-18 actual travel expenses incurred to perform their work for the
6-19 panel.
6-20 (d) The costs of compensating and reimbursing the members of
6-21 the medical malpractice claim review panel under Subsections (a),
6-22 (b), and (c) shall be shared equally by all claimants and
6-23 respondents.
6-24 (e) If a claimant is unable to pay the claimant's share of
6-25 the cost of the medical malpractice claim review panel, a court in
6-26 which the medical malpractice claim could be tried may, on petition
6-27 by that claimant, order the respondent or respondents to pay that
7-1 claimant's share of the cost. The court's order shall provide that
7-2 a respondent is entitled to reimbursement of any amount paid by the
7-3 respondent under this subsection from any recovery made by the
7-4 claimant in an action on the medical malpractice claim.
7-5 (f) The party calling a member of the medical malpractice
7-6 claim review panel as a witness in an action shall pay the member a
7-7 reasonable expert witness fee set by the court and shall compensate
7-8 the member for the member's expenses in appearing as a witness.
7-9 SECTION 2. (a) This Act takes effect September 1, 1993.
7-10 (b) This Act applies only to a medical malpractice claim
7-11 filed on or after the effective date of this Act. A claim that is
7-12 filed before the effective date of this Act is governed by the law
7-13 in effect at the time the claim is filed, and that law is continued
7-14 in effect for that purpose.
7-15 SECTION 3. The importance of this legislation and the
7-16 crowded condition of the calendars in both houses create an
7-17 emergency and an imperative public necessity that the
7-18 constitutional rule requiring bills to be read on three several
7-19 days in each house be suspended, and this rule is hereby suspended.