By Martin H.B. No. 2268
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to medical liability actions and medical liability
1-3 insurance.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Part 4, Section 41.02, Chapter 817, Acts of the
1-6 65th Legislature, 1977, not previously repealed by SECTION 2,
1-7 Chapter 608, Acts of the 72nd Legislature, 1991, is hereby
1-8 repealed.
1-9 SECTION 2. Article 4590i, Texas Revised Civil Statutes, Sec.
1-10 10.02, is amended to read as follows:
1-11 Sec. 10.02. <Cause of action accruing between the effective
1-12 date of this Act and the effective date of Article 5.82, Insurance
1-13 Code, shall be filed pursuant to Section 4 of Article 5.82.>
1-14 ACTIONS AGAINST HEALTH CARE PROVIDERS WHOSE IDENTITY OR ROLE IS
1-15 UNKNOWN.
1-16 (a) For the purposes of tolling the statute of limitations
1-17 in a health care liability claim, any person may file a petition
1-18 stating a health care liability claim in the appropriate court of
1-19 this state, whenever the identity or role of any health care
1-20 provider is unknown.
1-21 (b)(1) The name of any such unknown health care provider
1-22 shall be designated by the pseudonym John Doe, or if there is more
1-23 than one (1) tortfeasor, John Doe 1, John Doe 2, John Doe 3, etc.
2-1 (2) After filing the petition designating a John Doe,
2-2 the filing party shall proceed with due diligence to discover the
2-3 identify or role of the health care provider described by the
2-4 pseudonym and upon determining the identity and role of the health
2-5 care provider, the petition shall be amended by substituting the
2-6 real name for the pseudonym, no later than the One Hundred and
2-7 Twentieth (120) day after the filing of the petition naming the
2-8 John Doe.
2-9 (c) If the party added by amendment in accordance with this
2-10 section did not receive notice as provided by Section 4.01 of
2-11 Article 4590i, that party shall be entitled on request to the court
2-12 to an abatement of the lawsuit for such time as the court shall
2-13 determine is appropriate under the circumstances of the case but
2-14 not to exceed sixty (60) days following the date of service of
2-15 citation.
2-16 SECTION 3. Article 4590i, Texas Revised Civil Statutes, is
2-17 amended by adding Subchapter M to read as follows:
2-18 SUBCHAPTER M. PROCEDURAL PROVISIONS
2-19 Sec. 13.01. AFFIDAVIT OR COST BOND. (a) In a health care
2-20 liability claim, the plaintiff's attorney, or, if the plaintiff is
2-21 not represented by an attorney, the plaintiff, shall, within ninety
2-22 days after the date the action was commenced, file an affidavit
2-23 attesting that the attorney or plaintiff has obtained a written
2-24 opinion from an expert witness, whose qualifications are as set out
2-25 in Sec. 14.01, to the extent that said section is applicable, that
3-1 the acts or omissions of the health care provider was negligent and
3-2 a proximate cause of the damages claimed.
3-3 (b) A plaintiff or plaintiff's attorney shall be deemed to
3-4 be in compliance with subsection (a) of this section if, within
3-5 ninety days after the date the action was commenced, the plaintiff
3-6 posts a bond with surety or any other equivalent security approved
3-7 by the court, including cash in an escrow account, for costs in an
3-8 amount of $2,000.
3-9 (c) If, upon the expiration of the ninetieth day after the
3-10 date the action was commenced, or the expiration of the extension
3-11 period described in subsection (d), whichever is later, the
3-12 plaintiff has failed to post security as described in subsection
3-13 (b) or, alternatively, has failed to file an affidavit as described
3-14 in subsection (a), then the court, upon the motion of any party or
3-15 upon the court's own motion, shall increase the amount of security
3-16 required by subsection (b) to an amount not to exceed $4,000. If
3-17 the plaintiff fails to post the increased security within thirty
3-18 days after being served with a copy of the court's order or fails
3-19 to provide an affidavit as provided at subsection (a), the court
3-20 may, upon motion and for good cause shown, dismiss the action
3-21 without prejudice to its refiling and assess costs of court against
3-22 plaintiff.
3-23 (d) The court, upon motion of any party and for good cause
3-24 shown, may extend the time for the plaintiff to comply with
3-25 subsection (a) or (b) for a period not to exceed ninety days. The
4-1 time for the plaintiff to comply with subsection (a) or (b) may
4-2 also be extended by written agreement of the parties filed with the
4-3 court.
4-4 (e) Discovery concerning the affidavit, including the
4-5 written opinion and the identity of the health care provider who
4-6 supplied the opinion, shall not be allowed unless the health care
4-7 provider who supplied the opinion is designated as an expert
4-8 witness by the plaintiff.
4-9 SECTION 4. Article 4590i, Texas Revised Civil Statutes, Sec.
4-10 14.01, is amended to read as follows:
4-11 Sec. 14.01. (a) In a suit involving a health care liability
4-12 claim against a <physician> health care provider for injury to or
4-13 death of a patient, a person may qualify as an expert witness on
4-14 the issue of whether the <physician> health care provider departed
4-15 from accepted standards of medical care only if:
4-16 (1) the person is practicing in the respective area of
4-17 health care at the time such testimony is given or was practicing
4-18 in the respective area of health care at the time the claim arose
4-19 and has knowledge of accepted standards of <medical> the
4-20 respective area of health care for the diagnosis, care, or
4-21 treatment of the illness, injury, or condition involved in the
4-22 claim: or
4-23 (2) the court, after a hearing conducted outside the
4-24 presence of the jury, determines that the person is otherwise
4-25 qualified to give expert testimony on said issue.
5-1 (b) For the purpose of this section, "practicing" for
5-2 physicians includes, but is not limited to, training residents or
5-3 students at an accredited school of medicine or osteopathy or
5-4 serving as a consulting physician to other physicians who provide
5-5 direct patient care, upon the request of such other physician<.>,
5-6 and for other health care providers, "practicing" includes, but is
5-7 not limited to, training students at an accredited school of health
5-8 care through which the health care provider receives training or
5-9 serving as a consulting health care provider to other similar
5-10 health care providers who provide direct patient care, upon the
5-11 request of such other health care providers.
5-12 SECTION 5. This Act takes effect September 1, 1993.
5-13 SECTION 6. The importance of this legislation and the
5-14 crowded condition of the calendars in both houses create an
5-15 emergency and an imperative public necessity that the
5-16 constitutional rule requiring bills to be read on three several
5-17 days in each house be suspended, and this rule is hereby suspended.