By:  Culberson                                        H.B. No. 2357
       73R2766 DAK-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to expert witnesses in certain professional malpractice
    1-3  suits.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 14.01, Medical Liability and Insurance
    1-6  Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
    1-7  Statutes), is amended to read as follows:
    1-8        Sec. 14.01.  Qualification of Expert Witness in Suit Against
    1-9  Physician.  (a)  In a suit involving a health care liability claim
   1-10  against a physician for injury to or death of a patient, a person
   1-11  may qualify as an expert witness on the issue of whether the
   1-12  physician departed from accepted standards of medical care only if:
   1-13              (1)  for a claim against a physician who is certified
   1-14  in a specialty by a nationally recognized private medical specialty
   1-15  organization, the person is actively practicing in that specialty
   1-16  and has been certified by the board in that specialty for a period
   1-17  of at least three years preceding the filing of the claim; or
   1-18              (2)  for a claim against a physician who is not
   1-19  certified in a specialty by a nationally recognized private medical
   1-20  specialty organization, the person is practicing at the time such
   1-21  testimony is given <or was practicing at the time the claim arose>
   1-22  and has actual knowledge of accepted standards of medical care for
   1-23  the diagnosis, care, or treatment of the illness, injury, or
   1-24  condition involved in the claim<; or>
    2-1              <(2)  the court, after a hearing conducted outside the
    2-2  presence of the jury, determines that the person is otherwise
    2-3  qualified to give expert testimony on said issue>.
    2-4        (b)  For the purpose of Subsection (a)(2) of this section,
    2-5  "practicing" includes, but is not limited to, training residents or
    2-6  students at an accredited school of medicine or osteopathy or
    2-7  serving as a consulting physician to other physicians who provide
    2-8  direct patient care, upon the request of such other physicians.
    2-9        SECTION 2.  Chapter 22, Civil Practice and Remedies Code, is
   2-10  amended by adding Subchapter C to read as follows:
   2-11            SUBCHAPTER C.  DESIGNATION OF EXPERT WITNESS IN
   2-12                    PROFESSIONAL MALPRACTICE CLAIMS
   2-13        Sec. 22.021.  DEFINITIONS.  In this subchapter:
   2-14              (1)  "Expert witness" means an individual who may
   2-15  qualify under Article VII, Texas Rules of Civil Evidence, as an
   2-16  expert by knowledge, skill, experience, training, or education.
   2-17              (2)  "Malpractice claim" means a claim, including a
   2-18  counterclaim, cross-claim, or third-party claim, whether based on
   2-19  negligence, strict liability, intentional conduct, breach of
   2-20  warranty, contract, the Deceptive Trade Practices-Consumer
   2-21  Protection Act (Section 17.41 et seq., Business & Commerce Code),
   2-22  or other law:
   2-23                    (A)  brought against a professional or a
   2-24  professional association; and
   2-25                    (B)  arising out of professional services
   2-26  rendered to or relied on by:
   2-27                          (i)  the claimant;
    3-1                          (ii)  an individual under a legal
    3-2  disability whose legal representative is the claimant; or
    3-3                          (iii)  a deceased individual whose personal
    3-4  representative is the claimant.
    3-5              (3)  "Professional" means an individual:
    3-6                    (A)  licensed as an accountant under the Public
    3-7  Accountancy Act of 1991 (Article 41a-1, Vernon's Texas Civil
    3-8  Statutes);
    3-9                    (B)  registered as an architect under Chapter
   3-10  478, Acts of the 45th Legislature, Regular Session, 1937 (Article
   3-11  249a, Vernon's Texas Civil Statutes);
   3-12                    (C)  licensed as an attorney under Chapter 82,
   3-13  Government Code;
   3-14                    (D)  licensed as a dentist under Article 4543 et
   3-15  seq., Revised Statutes;
   3-16                    (E)  registered as an engineer under The Texas
   3-17  Engineering Practice Act (Article 3271a, Vernon's Texas Civil
   3-18  Statutes);
   3-19                    (F)  licensed as a physician under the Medical
   3-20  Practice Act (Article 4495b, Vernon's Texas Civil Statutes) or
   3-21  licensed or chartered as a  health care provider as defined by
   3-22  Section 1.03, Medical Liability and Insurance Improvement Act of
   3-23  Texas (Article 4590i, Vernon's Texas Civil Statutes); or
   3-24                    (G)  licensed or certified as a real estate
   3-25  appraiser under the Texas Appraiser Licensing and Certification Act
   3-26  (Article 6573a.2, Vernon's Texas Civil Statutes) or licensed as a
   3-27  broker under The Real Estate License Act (Article 6573a, Vernon's
    4-1  Texas Civil Statutes).
    4-2              (4)  "Professional association" means a group of
    4-3  professionals practicing together, whether as a partnership, a
    4-4  professional corporation organized under The Texas Professional
    4-5  Corporation Act (Article 1528e, Vernon's Texas Civil Statutes), or
    4-6  a professional association organized under the Texas Professional
    4-7  Association Act (Article 1528f, Vernon's Texas Civil Statutes).
    4-8        Sec. 22.022.  DESIGNATION OF EXPERT WITNESS.  (a)  Not later
    4-9  than the 90th day after the date on which a malpractice claim is
   4-10  filed, the claimant shall designate each expert witness whom the
   4-11  claimant may call at trial.  If the claimant discovers new evidence
   4-12  after the 90th day after the date on which a malpractice claim is
   4-13  filed, the claimant shall, not later than the 60th day after the
   4-14  date on which the evidence is discovered, designate each expert
   4-15  witness whom the claimant may call at trial to testify in relation
   4-16  to the evidence.
   4-17        (b)  The claimant shall specify whether the expert witness
   4-18  will testify regarding:
   4-19              (1)  the manner in which the professional performed the
   4-20  professional services;
   4-21              (2)  the standard of care or other criterion by which
   4-22  the professional's conduct is measured;
   4-23              (3)  the injury suffered by the claimant or the person
   4-24  whom the claimant represents; or
   4-25              (4)  another element of the claimant's cause of action
   4-26  that can be established only through expert testimony.
   4-27        (c)  The designation must be written.  The claimant shall
    5-1  file it with the court and serve it on all parties as provided by
    5-2  the Texas Rules of Civil Procedure.
    5-3        Sec. 22.023.  DISMISSAL OF MALPRACTICE CLAIM.  (a)  A court,
    5-4  on its own motion or that of the opposing party, may dismiss a
    5-5  malpractice claim with prejudice if the claimant does not designate
    5-6  an expert witness as required by Section 22.022.
    5-7        (b)  A claim may not be dismissed under this section without
    5-8  notice to the claimant and an opportunity for a hearing.
    5-9        Sec. 22.024.  CERTIFICATION.  In a suit involving a
   5-10  malpractice claim against a professional who is certified in a
   5-11  specialty by the appropriate licensing agency, a person may qualify
   5-12  as an expert witness on the issue of whether the professional
   5-13  departed from accepted standards of professional practice only if
   5-14  the person is actively practicing in that specialty and has been
   5-15  certified by the licensing agency in that specialty for a period of
   5-16  at least three years preceding the filing of the claim.
   5-17        SECTION 3.  This Act takes effect September 1, 1993, and
   5-18  applies only to an action filed on or after that date.  An action
   5-19  filed before the effective date of this Act is governed by the law
   5-20  in effect at the time the action was filed, and that law is
   5-21  continued in effect for that purpose.
   5-22        SECTION 4.  The importance of this legislation and the
   5-23  crowded condition of the calendars in both houses create an
   5-24  emergency and an imperative public necessity that the
   5-25  constitutional rule requiring bills to be read on three several
   5-26  days in each house be suspended, and this rule is hereby suspended.