By: Parker, Truan, Lucio S.B. No. 1409
A BILL TO BE ENTITLED
AN ACT
1-1 relating to medical liability actions and medical liability
1-2 insurance; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 41.02, Part 4, Chapter 817, Acts of the
1-5 65th Legislature, Regular Session, 1977, as it relates to Parts 2
1-6 and 3 of that chapter, not previously repealed by Section 2,
1-7 Chapter 608, Acts of the 72nd Legislature, Regular Session, 1991,
1-8 is hereby repealed.
1-9 SECTION 2. Section 41.02, Part 4, Chapter 817, Acts of the
1-10 65th Legislature, Regular Session, 1977, is amended to read as
1-11 follows:
1-12 Sec. 41.02. Part 1 of this <This> Act expires at midnight on
1-13 August 31, 2009 <1993>.
1-14 SECTION 3. The Medical Liability and Insurance Improvement
1-15 Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is
1-16 amended by adding Subchapter M to read as follows:
1-17 SUBCHAPTER M. PROCEDURAL PROVISIONS
1-18 Sec. 13.01. AFFIDAVIT OR COST BOND. (a) In a health care
1-19 liability claim, the plaintiff's attorney or, if the plaintiff is
1-20 not represented by an attorney, the plaintiff shall, within 90 days
1-21 after the date the action was commenced, file an affidavit
1-22 attesting that the attorney or plaintiff has obtained a written
1-23 opinion from an expert who has knowledge of accepted standards of
2-1 care for the diagnosis, care, or treatment of the illness, injury,
2-2 or condition involved in the claim, that the acts or omissions of
2-3 the physician or health care provider were negligent and a
2-4 proximate cause of the injury, harm, or damages claimed.
2-5 (b) A plaintiff or plaintiff's attorney shall be deemed to
2-6 be in compliance with Subsection (a) of this section if, within 90
2-7 days after the date the action was commenced, the plaintiff posts a
2-8 bond with surety or any other equivalent security approved by the
2-9 court, including cash in an escrow account, for costs in an amount
2-10 of $2,000.
2-11 (c) If on the expiration of the 90th day after the date the
2-12 action was commenced or the expiration of the extension period
2-13 described in Subsection (d) of this section, whichever is later,
2-14 the plaintiff has failed to post security as described in
2-15 Subsection (b) of this section or alternatively has failed to file
2-16 an affidavit as described in Subsection (a) of this section, then
2-17 the court on the motion of any party or on the court's own motion
2-18 shall increase the amount of security required by Subsection (b) of
2-19 this section to an amount not to exceed $4,000. If the plaintiff
2-20 fails to post the increased security within 30 days after being
2-21 served with a copy of the court's order or fails to provide an
2-22 affidavit as provided by Subsection (a) of this section, the court
2-23 shall on motion unless good cause is shown for such failure dismiss
2-24 the action without prejudice to its refiling and assess costs of
2-25 court against plaintiff.
3-1 (d) The court on motion of any party and for good cause
3-2 shown may extend the time for the plaintiff to comply with
3-3 Subsection (a) or (b) of this section for a period not to exceed 90
3-4 days. The time for the plaintiff to comply with Subsection (a) or
3-5 (b) of this section may also be extended by written agreement of
3-6 the parties filed with the court.
3-7 (e) Discovery concerning the affidavit, including the
3-8 written opinion and the identity of the physician or health care
3-9 provider who supplied the opinion, shall not be allowed unless the
3-10 physician or health care provider who supplied the opinion is
3-11 designated as an expert witness by the plaintiff.
3-12 Sec. 13.02. DISCOVERY PROCEDURES. (a) In every health care
3-13 liability claim the plaintiff shall within 45 days after the date
3-14 of filing of the original petition serve on the defendant's
3-15 attorney or, if no attorney has appeared for the defendant, on the
3-16 defendant full and complete answers to the appropriate standard set
3-17 of interrogatories and full and complete responses to the
3-18 appropriate standard set of requests for production of documents
3-19 and things promulgated in accordance with Subsection (c) of this
3-20 section.
3-21 (b) Every physician or health care provider who is a
3-22 defendant in a health care liability claim shall within 45 days
3-23 after the date on which an answer to the petition was due serve on
3-24 the plaintiff's attorney or, if the plaintiff is not represented by
3-25 an attorney, on the plaintiff full and complete answers to the
4-1 appropriate standard set of interrogatories and complete responses
4-2 to the standard set of requests for production of documents and
4-3 things promulgated pursuant to Subsection (c) of this section.
4-4 (c) The chief justice of the Supreme Court of Texas shall
4-5 within 30 days after the effective date of this Act appoint as
4-6 members of the Health Care Liability Discovery Panel three persons
4-7 from a list of attorneys to be submitted by a statewide association
4-8 of attorneys whose members include persons who customarily
4-9 represent patients in health care liability actions and three
4-10 persons from a list of attorneys to be submitted by a statewide
4-11 association of attorneys whose members include persons who
4-12 customarily represent defendants in health care liability actions.
4-13 Members of the Health Care Liability Discovery Panel serve without
4-14 compensation. On or before the 1st day of November, 1993, the
4-15 Health Care Liability Discovery Panel shall promulgate standard
4-16 sets of interrogatories and requests for production of documents
4-17 and things appropriate for each of the categories of plaintiffs and
4-18 defendants usually involved in health care liability claims. In
4-19 preparing standard sets of interrogatories the Health Care
4-20 Liability Discovery Panel shall not be restricted in number by any
4-21 limit imposed under the Texas Rules of Civil Procedure.
4-22 (d) The Supreme Court of Texas shall review the standard
4-23 sets of interrogatories and requests for production of documents
4-24 and things promulgated by the Health Care Liability Discovery Panel
4-25 and shall, no later than January 1, 1994, approve them in their
5-1 entirety, disapprove them in their entirety, or approve them with
5-2 modifications. If the supreme court disapproves such standard sets
5-3 of interrogatories and requests for production of documents and
5-4 things in their entirety, then such standard sets shall be null and
5-5 void and of no effect, and the Health Care Liability Discovery
5-6 Panel shall be disbanded. If the supreme court approves such
5-7 standard sets of interrogatories and requests for production of
5-8 documents and things with modifications, then the Health Care
5-9 Liability Discovery Panel shall either approve or disapprove of
5-10 such standard sets of interrogatories and requests for production
5-11 of documents and things as modified by the supreme court by a vote
5-12 of at least five of the six members of the panel. If the
5-13 modifications made by the supreme court fail to obtain the
5-14 necessary vote for approval by the panel, then such standard sets
5-15 of interrogatories and requests for production of documents and
5-16 things shall be null and void and of no effect and the panel shall
5-17 be disbanded. If the panel approves the modified standard sets of
5-18 interrogatories and requests for production of documents and
5-19 things, then the supreme court shall proceed to publish the
5-20 standard sets in accordance with Subsection (e) of this section.
5-21 (e) As soon as practical after the approval of such standard
5-22 sets of interrogatories and requests for production of documents
5-23 and things by the Health Care Liability Discovery Panel and the
5-24 Supreme Court of Texas, and in any event no later than February 1,
5-25 1994, the supreme court shall publish such standard sets.
6-1 Notwithstanding any other law, the supreme court shall not be
6-2 required to publish such standard sets of interrogatories and
6-3 requests for production of documents and things for public comment.
6-4 Beginning on April 1, 1994, all plaintiffs and all physicians or
6-5 health care providers who are defendants in a health care liability
6-6 claim in which the plaintiff's original petition is filed on or
6-7 after that date shall file full and complete answers and responses
6-8 in accordance with Subsections (a) and (b) of this section.
6-9 (f) Nothing in this section shall limit or impede the
6-10 Supreme Court of Texas in exercising its rulemaking authority
6-11 pursuant to Sections 22.003 and 22.004, Government Code.
6-12 (g) Except on motion and for good cause shown, no objection
6-13 may be asserted regarding any standard interrogatory or request for
6-14 production of documents and things, but no response shall be
6-15 required where a particular interrogatory or request is clearly
6-16 inapplicable under the circumstances of the case.
6-17 (h) Failure to file full and complete answers and responses
6-18 to standard interrogatories and requests for production of
6-19 documents and things in accordance with Subsections (a) and (b) of
6-20 this section or the making of a groundless objection under
6-21 Subsection (g) of this section shall be grounds for sanctions by
6-22 the court in accordance with the Texas Rules of Civil Procedure on
6-23 motion of any party.
6-24 (i) The time limits imposed under Subsections (a) and (b) of
6-25 this section may be extended by the court on the motion of a
7-1 responding party for good cause shown and shall be extended if
7-2 agreed in writing between the responding party and all opposing
7-3 parties. In no event shall an extension be for a period of more
7-4 than an additional 30 days.
7-5 (j) If a party is added by an amended pleading,
7-6 intervention, or otherwise, the new party shall file full and
7-7 complete answers to the appropriate standard set of interrogatories
7-8 and full and complete responses to the standard set of requests for
7-9 production of documents and things no later than 45 days after the
7-10 date of filing of the pleading by which the party first appeared in
7-11 the action.
7-12 (k) If information or documents required to provide full and
7-13 complete answers and responses as required by this section are not
7-14 in the possession of the responding party or attorney when the
7-15 answers or responses are filed, the party shall supplement the
7-16 answers and responses in accordance with the Texas Rules of Civil
7-17 Procedure.
7-18 (l) Nothing in this section shall preclude any party from
7-19 taking additional non-duplicative discovery of any other party.
7-20 The standard sets of interrogatories provided for in this section
7-21 shall not constitute, as to each plaintiff and each physician or
7-22 health care provider who is a defendant, the first of the two sets
7-23 of interrogatories permitted under the Texas Rules of Civil
7-24 Procedure.
7-25 (m) Notwithstanding any other provisions of this section, if
8-1 a court of this state has, prior to the effective date of this
8-2 section, signed an order in tort litigation in which cases have
8-3 been consolidated for discovery providing for standard sets of
8-4 interrogatories and requests for production of documents and
8-5 things, compliance with such an order shall be deemed to be
8-6 compliance with the requirements of this section.
8-7 SECTION 4. The Medical Liability and Insurance Improvement
8-8 Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is
8-9 amended by adding Subchapter O to read as follows:
8-10 SUBCHAPTER O. ARBITRATION AGREEMENTS
8-11 Sec. 15.01. ARBITRATION AGREEMENTS. (a) No physician,
8-12 professional association of physicians, or other health care
8-13 provider shall request or require a patient or prospective patient
8-14 to execute an agreement to arbitrate a health care liability claim
8-15 unless the form of agreement delivered to the patient contains a
8-16 written notice in 10-point boldface type clearly and conspicuously
8-17 stating:
8-18 UNDER TEXAS LAW, THIS AGREEMENT IS INVALID
8-19 AND OF NO LEGAL EFFECT UNLESS IT IS ALSO
8-20 SIGNED BY AN ATTORNEY OF YOUR OWN CHOOSING.
8-21 THIS AGREEMENT CONTAINS A WAIVER OF
8-22 IMPORTANT LEGAL RIGHTS, INCLUDING YOUR
8-23 RIGHT TO A JURY. YOU SHOULD NOT SIGN THIS
8-24 AGREEMENT WITHOUT FIRST CONSULTING WITH AN
8-25 ATTORNEY.
9-1 (b) A violation of this section by a physician or
9-2 professional association of physicians constitutes a violation of
9-3 the Medical Practice Act (Article 4495b, Vernon's Texas Civil
9-4 Statutes), and shall be subject to the enforcement provisions and
9-5 sanctions contained in Subchapter D of that Act.
9-6 (c) A violation of this section by a health care provider
9-7 other than a physician shall constitute a false, misleading, or
9-8 deceptive act or practice in the conduct of trade or commerce
9-9 within the meaning of Section 17.46 of the Deceptive Trade
9-10 Practices-Consumer Protection Act (Subchapter E, Chapter 17,
9-11 Business & Commerce Code), and shall be subject to an enforcement
9-12 action by the consumer protection division pursuant to said Act and
9-13 subject to the penalties and remedies contained in Section 17.47 of
9-14 that Act, notwithstanding Section 12.01 of this Act or any other
9-15 law.
9-16 (d) Notwithstanding any other provision of this section, a
9-17 person who is found to be in violation of this section for the
9-18 first time shall be subject only to injunctive relief or other
9-19 appropriate order requiring the person to cease and desist from
9-20 such violation, and not to any other penalty or sanction.
9-21 SECTION 5. Section 4.01, Medical Liability and Insurance
9-22 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
9-23 Statutes), is amended by adding Subsection (e) to read as follows:
9-24 (e) For the purposes of this section, and notwithstanding
9-25 Section 5.08, Medical Practices Act (Article 4495b, Vernon's Texas
10-1 Civil Statutes), or any other law, a request for the medical
10-2 records of a deceased person or a person who is incompetent shall
10-3 be deemed to be valid if accompanied by an authorization signed by
10-4 a parent, spouse, or adult child of the deceased or incompetent
10-5 person.
10-6 SECTION 6. Section 161.032, Health and Safety Code, is
10-7 amended to read as follows:
10-8 Sec. 161.032. RECORDS AND PROCEEDINGS CONFIDENTIAL.
10-9 (a) The records and proceedings of a medical committee are
10-10 confidential and are not subject to court subpoena.
10-11 (b) The records and proceedings may be used by the committee
10-12 and the committee members only in the exercise of proper committee
10-13 functions.
10-14 (c) This section and Section 5.06, Medical Practices Act
10-15 (Article 4495b, Vernon's Texas Civil Statutes), do <does> not apply
10-16 to records made or maintained in the regular course of business by
10-17 a hospital, health maintenance organization, medical organization,
10-18 university medical center or health science center, or extended
10-19 care facility.
10-20 SECTION 7. This Act takes effect immediately except that
10-21 Sections 3, 4, 5, and 6 take effect on September 1, 1993.
10-22 SECTION 8. The importance of this legislation and the
10-23 crowded condition of the calendars in both houses create an
10-24 emergency and an imperative public necessity that the
10-25 constitutional rule requiring bills to be read on three several
11-1 days in each house be suspended, and this rule is hereby suspended,
11-2 and that this Act take effect and be in force according to its
11-3 terms, and it is so enacted.