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.