By: Nelson S.B. No. 921
73R5008 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to recovery of damages for medical malpractice.
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 145 to read as follows:
1-6 CHAPTER 145. MEDICAL MALPRACTICE CLAIMS
1-7 SUBCHAPTER A. GENERAL PROVISIONS
1-8 Sec. 145.001. DEFINITIONS. In this chapter:
1-9 (1) "Claimant" means a party making a medical
1-10 malpractice claim.
1-11 (2) "Collateral source benefit" means a benefit paid
1-12 or payable to or on behalf of a claimant under:
1-13 (A) the Social Security Act (42 U.S.C. 301 et
1-14 seq.);
1-15 (B) a state or federal income replacement,
1-16 disability, workers' compensation, or other law that provides
1-17 partial or full income replacement;
1-18 (C) any insurance policy, including:
1-19 (i) an accident, health, or sickness
1-20 insurance policy;
1-21 (ii) a disability insurance policy;
1-22 (iii) a property or casualty insurance
1-23 policy, including a motor vehicle or homeowners' insurance policy;
1-24 and
2-1 (iv) a life insurance policy;
2-2 (D) an agreement under which a person, including
2-3 a health maintenance organization operating under a certificate of
2-4 authority issued under the Texas Health Maintenance Organization
2-5 Act (Chapter 20A, Vernon's Texas Insurance Code), is obligated to
2-6 provide or pay for medical, hospital, dental, or other health care
2-7 services or similar benefits; or
2-8 (E) a contractual or voluntary wage continuation
2-9 plan, provided by an employer or other person, or any other system
2-10 intended to provide wages during a period of disability.
2-11 (3) "Future damages" means damages that will accrue
2-12 after the judgment is rendered.
2-13 (4) "Health care provider" means any person licensed
2-14 to provide health care as a registered nurse, hospital, dentist,
2-15 podiatrist, pharmacist, or nursing home, or an officer, employee,
2-16 or agent of the licensed person.
2-17 (5) "Medical malpractice claim" means a claim,
2-18 including a counterclaim, cross-claim, or third party claim,
2-19 against a health care provider alleging a negligent act or omission
2-20 in the diagnosis, care, or treatment of a patient and alleging that
2-21 injury to or death of the patient resulted from the act.
2-22 (6) "Past damages" means damages that have accrued at
2-23 the time the judgment is rendered.
2-24 (7) "Respondent" means a party against whom a claimant
2-25 makes a claim.
2-26 Sec. 145.002. SCOPE OF CHAPTER. This chapter applies only
2-27 to a medical malpractice claim, without regard to whether the claim
3-1 is based on tort or contract principles.
3-2 Sec. 145.003. NOTICE OF CLAIM. (a) Not later than the 60th
3-3 day before a medical malpractice claim is filed, the claimant shall
3-4 mail or deliver written notice of the claim to each health care
3-5 provider named in the action. If notice under this subsection is
3-6 mailed, it shall be sent by certified mail, return receipt
3-7 requested.
3-8 (b) At the time the claimant files the claim, the claimant
3-9 shall attach an affidavit stating that the claimant has complied
3-10 with the requirements of this section. The court may require
3-11 additional information to determine whether the requirements of
3-12 this section have been satisfied.
3-13 (c) The claimant must file the action not later than the
3-14 later of:
3-15 (1) the date the applicable statute of limitations
3-16 expires; or
3-17 (2) the 75th day after the date on which the notice is
3-18 mailed or delivered under this section.
3-19 (d) The extension of the time to file the action under
3-20 Subsection (c)(2) applies to any party or potential party to the
3-21 action.
3-22 Sec. 145.004. PLEADING NOT TO STATE DAMAGE AMOUNT; SPECIAL
3-23 EXCEPTION. (a) A medical malpractice claim may not specify an
3-24 amount of money claimed as damages.
3-25 (b) The respondent may file a special exception to the claim
3-26 asserting the action is not within the court's jurisdiction. If a
3-27 special exception under this subsection is filed, the claimant
4-1 shall inform the court and the defendant in writing of the total
4-2 amount of money claimed as damages.
4-3 (c) This section does not prevent a party from mentioning
4-4 the amount of money claimed as damages in examining prospective
4-5 jurors on voir dire or in argument to the court or the jury.
4-6 SUBCHAPTER B. DAMAGES FINDINGS
4-7 Sec. 145.021. SPECIAL DAMAGES FINDINGS REQUIRED. If a trier
4-8 of fact awards damages in an action subject to this chapter, the
4-9 trier of fact shall make separate findings for each claimant
4-10 specifying:
4-11 (1) the amount of past damages for:
4-12 (A) medical and other health care costs;
4-13 (B) lost earnings;
4-14 (C) economic loss other than the costs of
4-15 medical or other health care and lost earnings; and
4-16 (D) noneconomic loss; and
4-17 (2) the amount of future damages for:
4-18 (A) medical and other health care costs;
4-19 (B) loss of earning capacity;
4-20 (C) economic loss other than the costs of
4-21 medical or other health care and loss of earning capacity; and
4-22 (D) noneconomic loss.
4-23 SUBCHAPTER C. REDUCTION IN AWARD FOR COLLATERAL SOURCE BENEFITS
4-24 Sec. 145.031. REDUCTION IN AWARD OF DAMAGES. After a
4-25 judgment has been rendered in a medical malpractice claim, the
4-26 court shall:
4-27 (1) reduce the amount of any award of damages for
5-1 economic loss by the total amount of collateral source benefits
5-2 paid or payable to the claimant to compensate the claimant for the
5-3 injury or death; and
5-4 (2) increase the amount of the award by any premium
5-5 paid or payable by the claimant to secure the right to the
5-6 collateral source benefit.
5-7 Sec. 145.032. EVIDENCE. (a) After the judgment has been
5-8 rendered, the court may hear testimony and receive other evidence
5-9 as to the amount of collateral source benefits paid to the claimant
5-10 and the amount of premium paid or payable by the claimant.
5-11 (b) This subchapter does not authorize the introduction of
5-12 evidence relating to the existence or amount of collateral source
5-13 benefits before a judgment has been rendered in an action.
5-14 Sec. 145.033. RIGHT OF SUBROGATION NOT CREATED. This
5-15 subchapter does not entitle a person providing a collateral source
5-16 benefit to a claimant to recover the amount of the benefit from a
5-17 respondent in an action subject to this chapter.
5-18 SUBCHAPTER D. PAYMENT FOR FUTURE LOSSES
5-19 Sec. 145.041. SCOPE OF SUBCHAPTER. This subchapter applies
5-20 only if the total award of future damages in an action subject to
5-21 this chapter against all respondents exceeds $100,000.
5-22 Sec. 145.042. PERIODIC PAYMENT. (a) The court shall order
5-23 future damages awarded in a medical malpractice claim to be paid in
5-24 periodic installments, in the amounts, and over the period of time
5-25 determined by the judge.
5-26 (b) The total amount paid may not exceed the amount of the
5-27 award for future damages specified in the findings of the trier of
6-1 fact, as reduced under Subchapter C.
6-2 (c) Payments for future damages for medical and other health
6-3 care costs, for economic loss other than the costs of medical or
6-4 other health care and loss of earning capacity, and for noneconomic
6-5 loss terminate on the death of the claimant.
6-6 (d) The total amount of payments for future damages for loss
6-7 of earning capacity owed but not yet paid to the claimant at the
6-8 time of the claimant's death shall be paid to the estate of the
6-9 claimant in a lump-sum amount based on the present discounted value
6-10 of the total as determined by a court.
6-11 SECTION 2. This Act takes effect September 1, 1993, and
6-12 applies only to a cause of action that accrues on or after that
6-13 date. An action that accrued before the effective date of this Act
6-14 is governed by the law in effect at the time the action accrued,
6-15 and that law is continued in effect for that purpose.
6-16 SECTION 3. The importance of this legislation and the
6-17 crowded condition of the calendars in both houses create an
6-18 emergency and an imperative public necessity that the
6-19 constitutional rule requiring bills to be read on three several
6-20 days in each house be suspended, and this rule is hereby suspended.