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.