By Culberson H.B. No. 700
74R3194 DAK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the designation of expert witnesses by the claimant in
1-3 a professional malpractice claim.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 22, Civil Practice and Remedies Code, is
1-6 amended by adding Subchapter C to read as follows:
1-7 SUBCHAPTER C. DESIGNATION OF EXPERT WITNESS IN
1-8 PROFESSIONAL MALPRACTICE CLAIMS
1-9 Sec. 22.021. DEFINITIONS. In this subchapter:
1-10 (1) "Expert witness" means an individual who may
1-11 qualify under Article VII, Texas Rules of Civil Evidence, as an
1-12 expert by knowledge, skill, experience, training, or education.
1-13 (2) "Malpractice claim" means a claim, including a
1-14 counterclaim, cross-claim, or third-party claim, whether based on
1-15 negligence, strict liability, intentional conduct, breach of
1-16 warranty, contract, the Deceptive Trade Practices-Consumer
1-17 Protection Act (Section 17.41 et seq., Business & Commerce Code),
1-18 or other law:
1-19 (A) brought against a professional or a
1-20 professional association; and
1-21 (B) arising out of professional services
1-22 rendered to or relied on by:
1-23 (i) the claimant;
1-24 (ii) an individual under a legal
2-1 disability whose legal representative is the claimant; or
2-2 (iii) a deceased individual whose personal
2-3 representative is the claimant.
2-4 (3) "Professional" means an individual licensed as:
2-5 (A) an architect under Chapter 478, Acts of the
2-6 45th Legislature, Regular Session, 1937 (Article 249a, Vernon's
2-7 Texas Civil Statutes);
2-8 (B) an attorney under Chapter 82, Government
2-9 Code;
2-10 (C) an engineer under The Texas Engineering
2-11 Practice Act (Article 3271a, Vernon's Texas Civil Statutes);
2-12 (D) a physician under the Medical Practice Act
2-13 (Article 4495b, Vernon's Texas Civil Statutes); or
2-14 (E) a real estate broker under The Real Estate
2-15 License Act (Article 6573a, Vernon's Texas Civil Statutes).
2-16 (4) "Professional association" means a group of
2-17 professionals practicing together, whether as a partnership, a
2-18 professional corporation organized under The Texas Professional
2-19 Corporation Act (Article 1528e, Vernon's Texas Civil Statutes), or
2-20 a professional association organized under the Texas Professional
2-21 Association Act (Article 1528f, Vernon's Texas Civil Statutes).
2-22 Sec. 22.022. DESIGNATION OF EXPERT WITNESS. (a) Not later
2-23 than the 60th day after the date on which a malpractice claim is
2-24 filed, the claimant shall designate each expert witness whom the
2-25 claimant may call at trial.
2-26 (b) The claimant shall specify whether the expert witness
2-27 will testify regarding:
3-1 (1) the manner in which the professional performed the
3-2 professional services;
3-3 (2) the standard of care or other criterion by which
3-4 the professional's conduct is measured;
3-5 (3) the injury suffered by the claimant or the person
3-6 whom the claimant represents; or
3-7 (4) another element of the claimant's cause of action
3-8 that can be established only through expert testimony.
3-9 (c) The designation must be written. The claimant shall
3-10 file it with the court and serve it on all parties in accordance
3-11 with the Texas Rules of Civil Procedure.
3-12 Sec. 22.023. DISMISSAL OF MALPRACTICE CLAIM. (a) A court,
3-13 on its own motion or that of the opposing party, shall dismiss a
3-14 malpractice claim with prejudice if the claimant does not designate
3-15 an expert witness as required by Section 22.022.
3-16 (b) A claim may not be dismissed under this section without
3-17 notice to the claimant and an opportunity for a hearing.
3-18 Sec. 22.024. DESIGNATION OF ADDITIONAL EXPERT WITNESS. (a)
3-19 In addition to the expert witness the claimant is required to
3-20 designate under Section 22.022, the claimant may designate an
3-21 additional expert witness after the 60th day after the date on
3-22 which a malpractice claim is filed if, on motion by the claimant,
3-23 the court finds that the claimant has good cause to designate an
3-24 additional expert witness.
3-25 (b) If a date has been set for trial of the claim, the
3-26 claimant must designate the additional expert witness not later
3-27 than the 90th day before that date.
4-1 SECTION 2. This Act takes effect September 1, 1995, and
4-2 applies only to a medical malpractice claim filed on or after the
4-3 effective date of this Act. A medical malpractice claim filed
4-4 before the effective date of this Act is governed by the law in
4-5 effect at the time the action was filed, and that law is continued
4-6 in effect for that purpose.
4-7 SECTION 3. The importance of this legislation and the
4-8 crowded condition of the calendars in both houses create an
4-9 emergency and an imperative public necessity that the
4-10 constitutional rule requiring bills to be read on three several
4-11 days in each house be suspended, and this rule is hereby suspended.