1-1 By: Parker, Lucio S.B. No. 1409
1-2 (In the Senate - Filed April 22, 1993; April 22, 1993, read
1-3 first time and referred to Committee on Economic Development;
1-4 May 4, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 9, Nays 0; May 4, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Parker x
1-10 Lucio x
1-11 Ellis x
1-12 Haley x
1-13 Harris of Dallas x
1-14 Harris of Tarrant x
1-15 Leedom x
1-16 Madla x
1-17 Rosson x
1-18 Shapiro x
1-19 Wentworth x
1-20 COMMITTEE SUBSTITUTE FOR S.B. No. 1409 By: Parker
1-21 A BILL TO BE ENTITLED
1-22 AN ACT
1-23 relating to medical liability actions and medical liability
1-24 insurance; providing penalties.
1-25 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-26 SECTION 1. Section 41.02, Part 4, Chapter 817, Acts of the
1-27 65th Legislature, Regular Session, 1977, as it relates to Parts 2
1-28 and 3 of that chapter, not previously repealed by Section 2,
1-29 Chapter 608, Acts of the 72nd Legislature, Regular Session, 1991,
1-30 is hereby repealed.
1-31 SECTION 2. Section 41.02, Part 4, Chapter 817, Acts of the
1-32 65th Legislature, Regular Session, 1977, is amended to read as
1-33 follows:
1-34 Sec. 41.02. Part 1 of this <This> Act expires at midnight on
1-35 August 31, 2009 <1993>.
1-36 SECTION 3. Section 10.02, Medical Liability and Insurance
1-37 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
1-38 Statutes), is amended to read as follows:
1-39 Sec. 10.02. ACTIONS AGAINST HEALTH CARE PROVIDERS WHOSE
1-40 IDENTITY OR ROLE IS UNKNOWN. (a) For the purposes of tolling the
1-41 statute of limitations in a health care liability claim, any person
1-42 may file a petition stating a health care liability claim in the
1-43 appropriate court of this state, whenever the identity or role of
1-44 any health care provider is unknown.
1-45 (b) The name of any such unknown health care provider shall
1-46 be designated by the pseudonym John Doe or, if there is more than
1-47 one tortfeasor, John Doe 1, John Doe 2, John Doe 3, etcetera.
1-48 (c) After filing the petition designating a John Doe, the
1-49 filing party shall proceed with due diligence to discover the
1-50 identity or role of the health care provider described by the
1-51 pseudonym and, on determining the identity and role of the health
1-52 care provider, the petition shall be amended by substituting the
1-53 real name for the pseudonym, no later than the 120th day after the
1-54 filing of the petition naming a John Doe.
1-55 (d) If the party added by amendment in accordance with this
1-56 section did not receive notice as provided by Section 4.01 of this
1-57 Act, that party shall be entitled on request to the court to an
1-58 abatement of the lawsuit for such time as the court shall determine
1-59 is appropriate under the circumstances of the case but not to
1-60 exceed 60 days following the date of service of citation. <CAUSES
1-61 OF ACTION COVERED BY OTHER LAW. Causes of action accruing between
1-62 the effective date of this Act and the effective date of Article
1-63 5.82, Insurance Code, shall be filed pursuant to Section 4 of
1-64 Article 5.82.>
1-65 SECTION 4. The Medical Liability and Insurance Improvement
1-66 Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is
1-67 amended by adding Subchapter M to read as follows:
1-68 SUBCHAPTER M. PROCEDURAL PROVISIONS
2-1 Sec. 13.01. AFFIDAVIT OR COST BOND. (a) In a health care
2-2 liability claim, the plaintiff's attorney or, if the plaintiff is
2-3 not represented by an attorney, the plaintiff shall, within 90 days
2-4 after the date the action was commenced, file an affidavit
2-5 attesting that the attorney or plaintiff has obtained a written
2-6 opinion from an expert who has knowledge of accepted standards of
2-7 care for the diagnosis, care, or treatment of the illness, injury,
2-8 or condition involved in the claim, that the acts or omissions of
2-9 the physician or health care provider were negligent and a
2-10 proximate cause of the injury, harm, or damages claimed.
2-11 (b) A plaintiff or plaintiff's attorney shall be deemed to
2-12 be in compliance with Subsection (a) of this section if, within 90
2-13 days after the date the action was commenced, the plaintiff posts a
2-14 bond with surety or any other equivalent security approved by the
2-15 court, including cash in an escrow account, for costs in an amount
2-16 of $2,000.
2-17 (c) If on the expiration of the 90th day after the date the
2-18 action was commenced or the expiration of the extension period
2-19 described in Subsection (d) of this section, whichever is later,
2-20 the plaintiff has failed to post security as described in
2-21 Subsection (b) of this section or alternatively has failed to file
2-22 an affidavit as described in Subsection (a) of this section, then
2-23 the court on the motion of any party or on the court's own motion
2-24 shall increase the amount of security required by Subsection (b) of
2-25 this section to an amount not to exceed $4,000. If the plaintiff
2-26 fails to post the increased security within 30 days after being
2-27 served with a copy of the court's order or fails to provide an
2-28 affidavit as provided by Subsection (a) of this section, the court
2-29 shall on motion unless good cause is shown for such failure dismiss
2-30 the action without prejudice to its refiling and assess costs of
2-31 court against plaintiff.
2-32 (d) The court on motion of any party and for good cause
2-33 shown may extend the time for the plaintiff to comply with
2-34 Subsection (a) or (b) of this section for a period not to exceed 90
2-35 days. The time for the plaintiff to comply with Subsection (a) or
2-36 (b) of this section may also be extended by written agreement of
2-37 the parties filed with the court.
2-38 (e) Discovery concerning the affidavit, including the
2-39 written opinion and the identity of the physician or health care
2-40 provider who supplied the opinion, shall not be allowed unless the
2-41 physician or health care provider who supplied the opinion is
2-42 designated as an expert witness by the plaintiff.
2-43 Sec. 13.02. DISCOVERY PROCEDURES. (a) In every health care
2-44 liability claim the plaintiff shall within 45 days after the date
2-45 of filing of the original petition serve on the defendant's
2-46 attorney or, if no attorney has appeared for the defendant, on the
2-47 defendant full and complete answers to the appropriate standard set
2-48 of interrogatories and full and complete responses to the
2-49 appropriate standard set of requests for production of documents
2-50 and things promulgated in accordance with Subsection (c) of this
2-51 section.
2-52 (b) Every physician or health care provider who is a
2-53 defendant in a health care liability claim shall within 45 days
2-54 after the date on which an answer to the petition was due serve on
2-55 the plaintiff's attorney or, if the plaintiff is not represented by
2-56 an attorney, on the plaintiff full and complete answers to the
2-57 appropriate standard set of interrogatories and complete responses
2-58 to the standard set of requests for production of documents and
2-59 things promulgated pursuant to Subsection (c) of this section.
2-60 (c) The chief justice of the Supreme Court of Texas shall
2-61 within 30 days after the effective date of this Act appoint as
2-62 members of the Health Care Liability Discovery Panel three persons
2-63 from a list of attorneys to be submitted by a statewide association
2-64 of attorneys whose members include persons who customarily
2-65 represent patients in health care liability actions and three
2-66 persons from a list of attorneys to be submitted by a statewide
2-67 association of attorneys whose members include persons who
2-68 customarily represent defendants in health care liability actions.
2-69 Members of the Health Care Liability Discovery Panel serve without
2-70 compensation. On or before the 1st day of November, 1993, the
3-1 Health Care Liability Discovery Panel shall promulgate standard
3-2 sets of interrogatories and requests for production of documents
3-3 and things appropriate for each of the categories of plaintiffs and
3-4 defendants usually involved in health care liability claims. In
3-5 preparing standard sets of interrogatories the Health Care
3-6 Liability Discovery Panel shall not be restricted in number by any
3-7 limit imposed under the Texas Rules of Civil Procedure.
3-8 (d) The Supreme Court of Texas shall review the standard
3-9 sets of interrogatories and requests for production of documents
3-10 and things promulgated by the Health Care Liability Discovery Panel
3-11 and shall, no later than January 1, 1994, approve them in their
3-12 entirety, disapprove them in their entirety, or approve them with
3-13 modifications. If the supreme court disapproves such standard sets
3-14 of interrogatories and requests for production of documents and
3-15 things in their entirety, then such standard sets shall be null and
3-16 void and of no effect, and the Health Care Liability Discovery
3-17 Panel shall be disbanded. If the supreme court approves such
3-18 standard sets of interrogatories and requests for production of
3-19 documents and things with modifications, then the Health Care
3-20 Liability Discovery Panel shall either approve or disapprove of
3-21 such standard sets of interrogatories and requests for production
3-22 of documents and things as modified by the supreme court by a vote
3-23 of at least five of the six members of the panel. If the
3-24 modifications made by the supreme court fail to obtain the
3-25 necessary vote for approval by the panel, then such standard sets
3-26 of interrogatories and requests for production of documents and
3-27 things shall be null and void and of no effect and the panel shall
3-28 be disbanded. If the panel approves the modified standard sets of
3-29 interrogatories and requests for production of documents and
3-30 things, then the supreme court shall proceed to publish the
3-31 standard sets in accordance with Subsection (e) of this section.
3-32 (e) As soon as practical after the approval of such standard
3-33 sets of interrogatories and requests for production of documents
3-34 and things by the Health Care Liability Discovery Panel and the
3-35 Supreme Court of Texas, and in any event no later than February 1,
3-36 1994, the supreme court shall publish such standard sets.
3-37 Notwithstanding any other law, the supreme court shall not be
3-38 required to publish such standard sets of interrogatories and
3-39 requests for production of documents and things for public comment.
3-40 Beginning on April 1, 1994, all plaintiffs and all physicians or
3-41 health care providers who are defendants in a health care liability
3-42 claim in which the plaintiff's original petition is filed on or
3-43 after that date shall file full and complete answers and responses
3-44 in accordance with Subsections (a) and (b) of this section.
3-45 (f) Nothing in this section shall limit or impede the
3-46 Supreme Court of Texas in exercising its rulemaking authority
3-47 pursuant to Sections 22.003 and 22.004, Government Code.
3-48 (g) Except on motion and for good cause shown, no objection
3-49 may be asserted regarding any standard interrogatory or request for
3-50 production of documents and things, but no response shall be
3-51 required where a particular interrogatory or request is clearly
3-52 inapplicable under the circumstances of the case.
3-53 (h) Failure to file full and complete answers and responses
3-54 to standard interrogatories and requests for production of
3-55 documents and things in accordance with Subsections (a) and (b) of
3-56 this section or the making of a groundless objection under
3-57 Subsection (g) of this section shall be grounds for sanctions by
3-58 the court in accordance with the Texas Rules of Civil Procedure on
3-59 motion of any party.
3-60 (i) The time limits imposed under Subsections (a) and (b) of
3-61 this section may be extended by the court on the motion of a
3-62 responding party for good cause shown and shall be extended if
3-63 agreed in writing between the responding party and all opposing
3-64 parties. In no event shall an extension be for a period of more
3-65 than an additional 30 days.
3-66 (j) If a party is added by an amended pleading,
3-67 intervention, or otherwise, the new party shall file full and
3-68 complete answers to the appropriate standard set of interrogatories
3-69 and full and complete responses to the standard set of requests for
3-70 production of documents and things no later than 45 days after the
4-1 date of filing of the pleading by which the party first appeared in
4-2 the action.
4-3 (k) If information or documents required to provide full and
4-4 complete answers and responses as required by this section are not
4-5 in the possession of the responding party or attorney when the
4-6 answers or responses are filed, the party shall supplement the
4-7 answers and responses in accordance with the Texas Rules of Civil
4-8 Procedure.
4-9 (l) Nothing in this section shall preclude any party from
4-10 taking additional non-duplicative discovery of any other party.
4-11 The standard sets of interrogatories provided for in this section
4-12 shall not constitute, as to each plaintiff and each physician or
4-13 health care provider who is a defendant, the first of the two sets
4-14 of interrogatories permitted under the Texas Rules of Civil
4-15 Procedure.
4-16 (m) Notwithstanding any other provisions of this section, if
4-17 a court of this state has, prior to the effective date of this
4-18 section, signed an order in tort litigation in which cases have
4-19 been consolidated for discovery, providing for standard sets of
4-20 interrogatories and requests for production of documents and
4-21 things, compliance with such an order shall be deemed to be
4-22 compliance with the requirements of this section.
4-23 SECTION 5. The Medical Liability and Insurance Improvement
4-24 Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is
4-25 amended by adding Subchapter O to read as follows:
4-26 SUBCHAPTER O. ARBITRATION AGREEMENTS
4-27 Sec. 15.01. ARBITRATION AGREEMENTS. (a) No physician,
4-28 professional association of physicians, or other health care
4-29 provider shall request or require a patient or prospective patient
4-30 to execute an agreement to arbitrate a health care liability claim
4-31 unless the form of agreement delivered to the patient contains a
4-32 written notice in 10-point boldface type clearly and conspicuously
4-33 stating:
4-34 UNDER TEXAS LAW, THIS AGREEMENT IS INVALID
4-35 AND OF NO LEGAL EFFECT UNLESS IT IS ALSO
4-36 SIGNED BY AN ATTORNEY OF YOUR OWN CHOOSING.
4-37 THIS AGREEMENT CONTAINS A WAIVER OF
4-38 IMPORTANT LEGAL RIGHTS, INCLUDING YOUR
4-39 RIGHT TO A JURY. YOU SHOULD NOT SIGN THIS
4-40 AGREEMENT WITHOUT FIRST CONSULTING WITH AN
4-41 ATTORNEY.
4-42 (b) A violation of this section by a physician or
4-43 professional association of physicians constitutes a violation of
4-44 the Medical Practice Act (Article 4495b, Vernon's Texas Civil
4-45 Statutes), and shall be subject to the enforcement provisions and
4-46 sanctions contained in Subchapter D of that Act.
4-47 (c) A violation of this section by a health care provider
4-48 other than a physician shall constitute a false, misleading, or
4-49 deceptive act or practice in the conduct of trade or commerce
4-50 within the meaning of Section 17.46 of the Deceptive Trade
4-51 Practices-Consumer Protection Act (Subchapter E, Chapter 17,
4-52 Business & Commerce Code), and shall be subject to an enforcement
4-53 action by the consumer protection division pursuant to said Act and
4-54 subject to the penalties and remedies contained in Section 17.47 of
4-55 that Act, notwithstanding Section 12.01 of this Act or any other
4-56 law.
4-57 (d) Notwithstanding any other provision of this section, a
4-58 person who is found to be in violation of this section for the
4-59 first time shall be subject only to injunctive relief or other
4-60 appropriate order requiring the person to cease and desist from
4-61 such violation, and not to any other penalty or sanction.
4-62 SECTION 6. Section 4.01, Medical Liability and Insurance
4-63 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
4-64 Statutes), is amended by adding Subsection (e) to read as follows:
4-65 (e) For the purposes of this section, and notwithstanding
4-66 Section 5.08, Medical Practices Act (Article 4495b, Vernon's Texas
4-67 Civil Statutes), or any other law, a request for the medical
4-68 records of a deceased person or a person who is incompetent shall
4-69 be deemed to be valid if accompanied by an authorization signed by
4-70 a parent, spouse, or adult child of the deceased or incapacitated
5-1 person.
5-2 SECTION 7. Section 14.01, Medical Liability and Insurance
5-3 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
5-4 Statutes), is amended to read as follows:
5-5 Sec. 14.01. QUALIFICATION OF EXPERT WITNESS IN SUIT AGAINST
5-6 PHYSICIAN. (a) In a suit involving a health care liability claim
5-7 against a physician or health care provider for injury to or death
5-8 of a patient, a person may qualify as an expert witness on the
5-9 issue of whether the physician or health care provider departed
5-10 from accepted standards of <medical> care only if:
5-11 (1) the person is practicing as a physician or a
5-12 health care provider at the time such testimony is given or was
5-13 practicing as a physician or a health care provider at the time the
5-14 claim arose and has knowledge of accepted standards of <medical>
5-15 care for the diagnosis, care, or treatment of the illness, injury,
5-16 or condition involved in the claim; <or>
5-17 (2) the court, after a hearing conducted outside the
5-18 presence of the jury, determines that the person is otherwise
5-19 qualified to give expert testimony on said issue; or
5-20 (3) the issue about which the witness will give
5-21 testimony involves administrative functions and the witness has
5-22 knowledge of accepted standards of care even though the witness may
5-23 not be a physician or health care provider.
5-24 (b) For the purpose of this section, "practicing" for
5-25 physicians includes, but is not limited to, training residents or
5-26 students at an accredited school of medicine or osteopathy or
5-27 serving as a consulting physician to other physicians who provide
5-28 direct patient care, upon the request of such other physicians,
5-29 and, for other health care providers, "practicing" includes, but is
5-30 not limited to, training students at an accredited school of health
5-31 care through which the health care provider receives training or
5-32 serving as a consulting health care provider to other similar
5-33 health care providers who provide direct patient care, on the
5-34 request of such other health care providers.
5-35 SECTION 8. Section 161.032, Health and Safety Code, is
5-36 amended to read as follows:
5-37 Sec. 161.032. RECORDS AND PROCEEDINGS CONFIDENTIAL.
5-38 (a) The records and proceedings of a medical committee are
5-39 confidential and are not subject to court subpoena.
5-40 (b) The records and proceedings may be used by the committee
5-41 and the committee members only in the exercise of proper committee
5-42 functions.
5-43 (c) This section and Section 5.06, Medical Practices Act
5-44 (Article 4495b, Vernon's Texas Civil Statutes), do <does> not apply
5-45 to records made or maintained in the regular course of business by
5-46 a hospital, health maintenance organization, medical organization,
5-47 university medical center or health science center, or extended
5-48 care facility.
5-49 SECTION 9. Subsection (g), Section 5.08, (Article 4495b,
5-50 Vernon's Texas Civil Statutes), is amended to read as follows:
5-51 (g) Exceptions to confidentiality or privilege in court or
5-52 administrative proceedings exist:
5-53 (1) when the proceedings are brought by the patient
5-54 against a physician, including but not limited to malpractice
5-55 proceedings, and any criminal or license revocation proceeding in
5-56 which the patient is a complaining witness and in which disclosure
5-57 is relevant to the claims or defense of a physician;
5-58 (2) when the patient or someone authorized to act on
5-59 his behalf submits a written consent to the release of any
5-60 confidential information, as provided in Subsection (j) of this
5-61 section;
5-62 (3) when the purpose of the proceedings is to
5-63 substantiate and collect on a claim for medical services rendered
5-64 to the patient;
5-65 (4) in any civil litigation or administrative
5-66 proceeding, if relevant, brought by the patient or someone on the
5-67 patient's <his> behalf, if the patient is attempting to recover
5-68 monetary damages for any physical or mental condition, including
5-69 the death of the patient, or, with the deletion of the patient's
5-70 name and other identifying information, in any civil litigation or
6-1 administrative proceeding brought by another person to recover
6-2 monetary damages for any physical or mental injury or death, if the
6-3 claimant makes a prima facie showing to the court, through
6-4 responses to interrogatories or requests for admissions, by an
6-5 affidavit or through other verified evidence, that such records are
6-6 relevant to a claim or defense. Any information is discoverable
6-7 in any court or administrative proceeding in this state if the
6-8 court or administrative body has jurisdiction over the subject
6-9 matter, pursuant to rules of procedure specified for the matters.
6-10 Nothing in this subsection shall prejudice the right of a health
6-11 care provider or physician to request an appropriate protective
6-12 order pursuant to the Texas Rules of Civil Procedure;
6-13 (5) in any disciplinary investigation or proceeding of
6-14 a physician conducted under or pursuant to this Act, provided that
6-15 the board shall protect the identity of any patient whose medical
6-16 records are examined, except for those patients covered under
6-17 Subdivision (1) of Subsection (g) of this section or those patients
6-18 who have submitted written consent to the release of their medical
6-19 records as provided by Subsection (j) of this section;
6-20 (6) in any criminal investigation of a physician in
6-21 which the board is participating or assisting in the investigation
6-22 or proceeding by providing certain medical records obtained from
6-23 the physician, provided that the board shall protect the identity
6-24 of any patient whose medical records are provided in the
6-25 investigation or proceeding, except for those patients covered
6-26 under Subdivision (1) of Subsection (g) of this section or those
6-27 patients who have submitted written consent to the release of their
6-28 medical records as provided by Subsection (j) of this section.
6-29 This subsection does not authorize the release of any confidential
6-30 information for the purpose of instigating or substantiating
6-31 criminal charges against a patient;
6-32 (7) in an involuntary civil commitment proceeding,
6-33 proceeding for court-ordered treatment, or probable cause hearing
6-34 under:
6-35 (A) the Texas Mental Health Code (Article 5547-1
6-36 et seq., Vernon's Texas Civil Statutes);
6-37 (B) the Mentally Retarded Persons Act of 1977
6-38 (Article 5547-300, Vernon's Texas Civil Statutes);
6-39 (C) Section 9, Chapter 411, Acts of the 53rd
6-40 Legislature, Regular Session, 1953 (Article 5561c, Vernon's Texas
6-41 Civil Statutes);
6-42 (D) Section 2, Chapter 543, Acts of the 61st
6-43 Legislature, Regular Session, 1969 (Article 5561c-1, Vernon's Texas
6-44 Civil Statutes); or
6-45 (8) in any criminal prosecution where the patient is a
6-46 victim, witness, or defendant. Records are not discoverable until
6-47 the court in which the prosecution is pending makes an in camera
6-48 determination as to the relevancy of the records or communications
6-49 or any portion thereof. Such determination shall not constitute a
6-50 determination as to the admissibility of such records or
6-51 communications or any portion thereof.
6-52 SECTION 10. This Act takes effect immediately except that
6-53 Sections 3, 4, 5, 6, 7, 8, and 9 take effect on September 1, 1993.
6-54 SECTION 11. The importance of this legislation and the
6-55 crowded condition of the calendars in both houses create an
6-56 emergency and an imperative public necessity that the
6-57 constitutional rule requiring bills to be read on three several
6-58 days in each house be suspended, and this rule is hereby suspended,
6-59 and that this Act take effect and be in force according to its
6-60 terms, and it is so enacted.
6-61 * * * * *
6-62 Austin,
6-63 Texas
6-64 May 4, 1993
6-65 Hon. Bob Bullock
6-66 President of the Senate
6-67 Sir:
6-68 We, your Committee on Economic Development to which was referred
6-69 S.B. No. 1409, have had the same under consideration, and I am
6-70 instructed to report it back to the Senate with the recommendation
7-1 that it do not pass, but that the Committee Substitute adopted in
7-2 lieu thereof do pass and be printed.
7-3 Parker,
7-4 Chairman
7-5 * * * * *
7-6 WITNESSES
7-7 FOR AGAINST ON
7-8 ___________________________________________________________________
7-9 Name: Edwin H. Fisher, Jr. x
7-10 Representing: The Medical Protective Co.
7-11 City: Ft. Wayne
7-12 -------------------------------------------------------------------
7-13 Name: Bob Fields x
7-14 Representing: TX Medical Liability Trust
7-15 City: Austin
7-16 -------------------------------------------------------------------
7-17 Name: Reggie James x
7-18 Representing: Consumers Union
7-19 City: Austin
7-20 -------------------------------------------------------------------
7-21 Name: Dan Price x
7-22 Representing: TX Assn. of Defense Counsel
7-23 City: Austin
7-24 -------------------------------------------------------------------
7-25 Name: Michael G. Mullen x
7-26 Representing: TMA
7-27 City: Austin
7-28 -------------------------------------------------------------------
7-29 Name: Harold Freeman x
7-30 Representing: TMA
7-31 City: Austin
7-32 -------------------------------------------------------------------
7-33 Name: Charles Bailey x
7-34 Representing: Texas Hospital Association
7-35 City: Austin
7-36 -------------------------------------------------------------------
7-37 Name: Timothy M. Sulak x
7-38 Representing: TTLA
7-39 City: Austin
7-40 -------------------------------------------------------------------