By Hunter of Nueces, Junell, Duncan,                   H.B. No. 971
             Eiland, et al.
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to health care liability claims.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Section 13.01, Medical Liability and Insurance
    1-5  Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
    1-6  Statutes), is amended to read as follows:
    1-7        Sec. 13.01.  <Affidavit or> Cost Bond, Deposit, and Expert
    1-8  Report.  (a)  In a health care liability claim, a claimant shall,
    1-9  not later than the 90th day after the date the claim is filed:
   1-10              (1)  file a separate cost bond in the amount of $5,000
   1-11  for each physician or health care provider named by the claimant in
   1-12  the action;
   1-13              (2)  place cash in an escrow account in the amount of
   1-14  $5,000 for each physician or health care provider named in the
   1-15  action; or
   1-16              (3)  file an expert report for each physician or health
   1-17  care provider with respect to whom a cost bond has not been filed
   1-18  and cash in lieu of the bond has not been deposited under
   1-19  Subdivision (1) or (2) of this subsection  <the plaintiff's
   1-20  attorney or, if the plaintiff is not represented by an attorney,
   1-21  the plaintiff shall, within 90 days after the date the action was
   1-22  commenced, file an affidavit attesting that the attorney or
   1-23  plaintiff has obtained a written opinion from an expert who has
   1-24  knowledge of accepted standards of care for the diagnosis, care, or
    2-1  treatment of the illness, injury, or condition involved in the
    2-2  claim, that the acts or omissions of the physician or health care
    2-3  provider were negligent and a proximate cause of the injury, harm,
    2-4  or damages claimed>.
    2-5        (b)  If, as to a defendant physician or health care provider,
    2-6  an expert report, cost bond, or cash in lieu of bond has not been
    2-7  filed or deposited within the period specified by Subsection (a) or
    2-8  (h) of this section, the court, on the motion of the affected
    2-9  physician or health care provider, shall enter an order that:
   2-10              (1)  requires the filing of a $7,500 cost bond with
   2-11  respect to the physician or health care provider not later than the
   2-12  21st day after the date of the order; and
   2-13              (2)  provides that if the claimant fails to comply with
   2-14  the order, the action shall be dismissed for want of prosecution
   2-15  with respect to the physician or health care provider, subject to
   2-16  reinstatement in accordance with the applicable rules of civil
   2-17  procedure and Subsection (c) of this section.  <A plaintiff or
   2-18  plaintiff's attorney shall be deemed to be in compliance with
   2-19  Subsection (a) of this section if, within 90 days after the date
   2-20  the action was commenced, the plaintiff posts a bond with surety or
   2-21  any other equivalent security approved by the court, including cash
   2-22  in an escrow account, for costs in an amount of $2,000.>
   2-23        (c)  Before a claim that has been dismissed under Subsection
   2-24  (b)(2) of this section may be reinstated, the claimant must pay the
   2-25  costs of court incurred by the defendant before the dismissal and
   2-26  file a $7,500 cost bond for each defendant physician or health care
   2-27  provider.  <If on the expiration of the 90th day after the date the
    3-1  action was commenced or the expiration of the extension period
    3-2  described in Subsection (d) of this section, whichever is later,
    3-3  the plaintiff has failed to post security as described in
    3-4  Subsection (b) of this section or alternatively has failed to file
    3-5  an affidavit as described in Subsection (a) of this section, then
    3-6  the court on the motion of any party or on the court's own motion
    3-7  shall increase the amount of security required by Subsection (b) of
    3-8  this section to an amount not to exceed $4,000.  If the plaintiff
    3-9  fails to post the increased security within 30 days after being
   3-10  served with a copy of the court's order or fails to provide an
   3-11  affidavit as provided by Subsection (a) of this section, the court
   3-12  shall on motion unless good cause is shown for such failure dismiss
   3-13  the action without prejudice to its refiling and assess costs of
   3-14  court against plaintiff.>
   3-15        (d)  Not later than the later of the 180th day after the date
   3-16  on which a health care liability claim is filed or the last day of
   3-17  any extended period established under Subsection (f) or (h) of this
   3-18  section, the claimant shall, for each physician or health care
   3-19  provider against whom a claim is asserted:
   3-20              (1)  furnish to counsel for each physician or health
   3-21  care provider one or more expert reports, with a curriculum vitae
   3-22  of each expert listed in the report; or
   3-23              (2)  voluntarily nonsuit the action against the
   3-24  physician or health care provider.  <The court on motion of any
   3-25  party and for good cause shown may extend the time for the
   3-26  plaintiff to comply with Subsection (a) or (b) of this section for
   3-27  a period not to exceed 90 days.  The time for the plaintiff to
    4-1  comply with Subsection (a) or (b) of this section may also be
    4-2  extended by written agreement of the parties filed with the court.>
    4-3        (e)  If a claimant has failed, for any defendant physician or
    4-4  health care provider, to comply with Subsection (d) of this section
    4-5  within the time required, the court shall, on the motion of the
    4-6  affected physician or health care provider, enter an order awarding
    4-7  as sanctions against the claimant or the claimant's attorney:
    4-8              (1)  the reasonable attorney's fees and costs of court
    4-9  incurred by that defendant;
   4-10              (2)  the forfeiture of any cost bond respecting the
   4-11  claimant's claim against that defendant to the extent necessary to
   4-12  pay the award; and
   4-13              (3)  the dismissal of the action of the claimant
   4-14  against that defendant with prejudice to the claim's refiling
   4-15  <Discovery concerning the affidavit, including the written opinion
   4-16  and the identity of the physician or health care provider who
   4-17  supplied the opinion, shall not be allowed unless the physician or
   4-18  health care provider who supplied the opinion is designated as an
   4-19  expert witness by the plaintiff>.
   4-20        (f)  The court may, for good cause shown after motion and
   4-21  hearing, extend any time period specified in Subsection (d) of this
   4-22  section for an additional 30 days.  Only one extension may be
   4-23  granted under this subsection.
   4-24        (g)  Notwithstanding any other provision of this section, if
   4-25  a claimant has failed to comply with a deadline established by
   4-26  Subsection (d) of this section and after hearing the court finds
   4-27  that the failure of the claimant or the claimant's attorney was not
    5-1  intentional or the result of conscious indifference but was the
    5-2  result of an accident or mistake, the court shall grant a grace
    5-3  period of 30 days to permit the claimant to comply with that
    5-4  subsection.  A motion by a claimant for relief under this
    5-5  subsection shall be considered timely if it is filed before any
    5-6  hearing on a motion by a defendant under Subsection (e) of this
    5-7  section.
    5-8        (h)  The affected parties may agree to extend any time period
    5-9  specified in Subsection (a) or (d) of this section.  An agreement
   5-10  under this subsection is binding and shall be honored by the court
   5-11  if signed by the affected parties or their counsel and filed with
   5-12  the court.
   5-13        (i)  Notwithstanding any other provision of this section, a
   5-14  claimant may satisfy any requirement of this section for filing an
   5-15  expert report by filing reports of separate experts regarding
   5-16  different physicians or health care providers or regarding
   5-17  different issues arising from the conduct of a physician or health
   5-18  care provider, such as issues of liability and causation.  Nothing
   5-19  in this section shall be construed to mean that a single expert
   5-20  must address all liability and causation issues with respect to all
   5-21  physicians or health care providers or with respect to both
   5-22  liability and causation issues for a physician or health care
   5-23  provider.
   5-24        (j)  Nothing in this section shall be construed to require
   5-25  the filing of an expert report regarding any issue other than an
   5-26  issue relating to liability or causation.
   5-27        (k)  Notwithstanding any other law, an expert report filed
    6-1  under this section:
    6-2              (1)  is not admissible in evidence by a defendant;
    6-3              (2)  shall not be used in a deposition, trial, or other
    6-4  proceeding; and
    6-5              (3)  shall not be referred to by a defendant during the
    6-6  course of the action for any purpose.
    6-7        (l)  A court shall grant a motion challenging the adequacy of
    6-8  an expert report only if it appears to the court, after hearing,
    6-9  that the report does not represent a good faith effort to comply
   6-10  with the definition of an expert report in Subsection (r)(6) of
   6-11  this section.
   6-12        (m)  On the claimant's compliance with the requirements of
   6-13  Subsection (d) of this section:
   6-14              (1)  any cost bond filed or cash deposited in an escrow
   6-15  account by the claimant under this section shall be released;
   6-16              (2)  the claimant, the claimant's counsel, and any
   6-17  surety have no liability on the cost bond or cash deposit; and
   6-18              (3)  an execution shall not be issued on the cost bond
   6-19  or cash deposit.
   6-20        (n)  If a claimant nonsuits a health care liability claim
   6-21  against a physician or health care provider before filing a cost
   6-22  bond and seeks to refile the same or a similar health care
   6-23  liability claim against the physician or health care provider not
   6-24  later than the 30th day after the date of the nonsuit, the claimant
   6-25  shall file a $7,500 cost bond for each previously nonsuited
   6-26  physician or health care provider at the time of the filing of the
   6-27  health care liability claim.  If the claimant fails to file the
    7-1  $7,500 cost bond for each physician or health care provider, on
    7-2  motion and hearing the court shall order the filing of the cost
    7-3  bond and the claimant shall pay the movant reasonable attorney's
    7-4  fees incurred in obtaining relief under this subsection.
    7-5        (o)  Notwithstanding any other provision of this section, a
    7-6  claimant who is proceeding without an attorney and who is unable to
    7-7  afford a cost bond or cash deposit may, in lieu of a cost bond or
    7-8  cash deposit, file an affidavit in the same form required for an
    7-9  affidavit in lieu of security for costs under the Texas Rules of
   7-10  Civil Procedure.
   7-11        (p)  In the event of a conflict between this section and
   7-12  another law, including a rule of procedure or court rule, this
   7-13  section controls to the extent of the conflict.
   7-14        (q)  Notwithstanding the provisions of Section 22.004,
   7-15  Government Code, the supreme court may not amend or adopt rules in
   7-16  conflict with this section.  The district courts and statutory
   7-17  county courts in a county may not adopt local rules in conflict
   7-18  with this section.
   7-19        (r)  In this section:
   7-20              (1)  "Affected parties" means the claimant and the
   7-21  physician or health care provider who are directly affected by an
   7-22  act or agreement required or permitted by this section and does not
   7-23  include other parties to an action who are not directly affected by
   7-24  that particular act or agreement.
   7-25              (2)  "Claim" means a health care liability claim.
   7-26              (3)  "Claimant" means a party who files a pleading
   7-27  asserting a claim.  All plaintiffs claiming to have sustained
    8-1  damages as the result of the bodily injury or death of a single
    8-2  person are considered to be a single claimant.
    8-3              (4)  "Defendant" means a physician or health care
    8-4  provider against whom a health care liability claim is asserted.
    8-5  The term includes a third-party defendant, cross-defendant, or
    8-6  counterdefendant.
    8-7              (5)  "Expert" means:
    8-8                    (A)  with respect to a person giving opinion
    8-9  testimony regarding whether a physician departed from accepted
   8-10  standards of medical care, an expert qualified to testify under the
   8-11  requirements of Section 14.01(a) of this Act; or
   8-12                    (B)  with respect to a person giving opinion
   8-13  testimony about a nonphysician health care provider, an expert who
   8-14  has knowledge of accepted standards of care for the diagnosis,
   8-15  care, or treatment of the illness, injury, or condition involved in
   8-16  the claim.
   8-17              (6)  "Expert report" means a written report by an
   8-18  expert that provides a fair summary of the expert's opinions as of
   8-19  the date of the report regarding applicable standards of care, the
   8-20  manner in which the care rendered by the physician or health care
   8-21  provider failed to meet the standards, and the causal relationship
   8-22  between that failure and the injury, harm, or damages claimed.
   8-23        SECTION 2.  Section 14.01, Medical Liability and Insurance
   8-24  Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
   8-25  Statutes), is amended to read as follows:
   8-26        Sec. 14.01.  Qualification of expert witness in suit against
   8-27  physician.  (a)  In a suit involving a health care liability claim
    9-1  against a physician for injury to or death of a patient, a person
    9-2  may qualify as an expert witness on the issue of whether the
    9-3  physician departed from accepted standards of medical care only if
    9-4  the person is a physician who:
    9-5              (1)  <the person> is practicing medicine at the time
    9-6  such testimony is given or was practicing medicine at the time the
    9-7  claim arose;
    9-8              (2)  <and> has knowledge of accepted standards of
    9-9  medical care for the diagnosis, care, or treatment of the illness,
   9-10  injury, or condition involved in the claim; and
   9-11              (3)  is qualified on the basis of training or
   9-12  experience to offer an expert opinion regarding those accepted
   9-13  standards of medical care. <or>
   9-14              <(2)  the court, after a hearing conducted outside the
   9-15  presence of the jury, determines that the person is otherwise
   9-16  qualified to give expert testimony on said issue.>
   9-17        (b)  For the purpose of this section, "practicing medicine"
   9-18  or "medical practice" includes, but is not limited to, training
   9-19  residents or students at an accredited school of medicine or
   9-20  osteopathy or serving as a consulting physician to other physicians
   9-21  who provide direct patient care, upon the request of such other
   9-22  physicians.
   9-23        (c)  In determining whether a witness is qualified on the
   9-24  basis of training or experience, the court shall consider whether,
   9-25  at the time the claim arose or at the time the testimony is given,
   9-26  the witness:
   9-27              (1)  is board certified or has other substantial
   10-1  training or experience in an area of medical practice relevant to
   10-2  the claim; and
   10-3              (2)  is actively practicing medicine in rendering
   10-4  medical care services relevant to the claim.
   10-5        (d)  The court shall apply the criteria specified in
   10-6  Subsection (c) of this section in determining whether an expert is
   10-7  qualified to offer expert testimony on the issue of whether the
   10-8  physician departed from accepted standards of medical care, but may
   10-9  depart from those criteria if, under the circumstances, the court
  10-10  determines that there is a good reason to admit the expert's
  10-11  testimony.  The court shall state on the record the reason for
  10-12  admitting the testimony if the court departs from the criteria.
  10-13        (e)  A pretrial objection to the qualifications of a witness
  10-14  under this section must be made not later than the later of the
  10-15  21st day after the date the objecting party receives a copy of the
  10-16  witness's curriculum vitae or the date of the witness's deposition.
  10-17  If circumstances arise after the date on which the objection must
  10-18  be made that could not have been reasonably anticipated by a party
  10-19  before that date and that the party believes in good faith provide
  10-20  a basis for an objection to a witness's qualifications, and if an
  10-21  objection was not made previously, this subsection does not prevent
  10-22  the party from making an objection as soon as practicable under the
  10-23  circumstances.  The court shall conduct a hearing to determine
  10-24  whether the witness is qualified as soon as practicable after the
  10-25  filing of an objection and, if possible, before trial.  If the
  10-26  objecting party is unable to object in time for the hearing to be
  10-27  conducted before the trial, the hearing shall be conducted outside
   11-1  the presence of the jury.  This subsection does not prevent a party
   11-2  from examining or cross-examining a witness at trial about the
   11-3  witness's qualifications.
   11-4        (f)  This section does not prevent a physician who is a
   11-5  defendant from qualifying as an expert.
   11-6        SECTION 3.   The Medical Liability and Insurance Improvement
   11-7  Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) is
   11-8  amended by adding Subchapter P to read as follows:
   11-9                  SUBCHAPTER P.  PREJUDGMENT INTEREST
  11-10        Sec. 16.01.  APPLICATION OF OTHER LAW.  Notwithstanding
  11-11  Sections 6(a)-(f), Article 1.05, Title 79, Revised Statutes
  11-12  (Article 5069-1.05, Vernon's Texas Civil Statutes), prejudgment
  11-13  interest in a health care liability claim shall be awarded in
  11-14  accordance with this subchapter.
  11-15        Sec. 16.02.  COMPUTATION OF PREJUDGMENT INTEREST.  (a)  In a
  11-16  health care liability claim, prejudgment interest may not be
  11-17  charged with respect to a defendant physician or health care
  11-18  provider who has settled the claim before the 181st day after the
  11-19  date notice of the claim was first mailed to the physician or
  11-20  health care provider.
  11-21        (b)  In a health care liability claim that is not settled
  11-22  within the period specified by Subsection (a) of this section, the
  11-23  judgment must include prejudgment interest on past damages found by
  11-24  the trier of fact, but shall not include prejudgment interest on
  11-25  future damages found by the trier of fact.
  11-26        (c)  Prejudgment interest allowed under this subchapter shall
  11-27  be computed in accordance with Section 6(g), Article 1.05, Title
   12-1  79, Revised Statutes (Article 5069-1.05, Vernon's Texas Civil
   12-2  Statutes), for a period beginning on the date of injury and ending
   12-3  on the date before the date the judgment is signed.
   12-4        (d)  In this section:
   12-5              (1)  "Past damages" means damages awarded to compensate
   12-6  the claimant for loss the claimant will incur for a period
   12-7  beginning on the date of injury and ending on the date before the
   12-8  date of judgment.
   12-9              (2)  "Future damages" means damages awarded to
  12-10  compensate the claimant for loss the claimant will incur after the
  12-11  date of judgment.
  12-12        SECTION 4.  Section 10.02, Medical Liability and Insurance
  12-13  Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
  12-14  Statutes), is amended to read as follows:
  12-15        Sec. 10.02.  EFFECT OF FILING SUIT ON BEHALF OF MINOR <CAUSES
  12-16  OF ACTION COVERED BY OTHER LAW>.  (a)  Notwithstanding any other
  12-17  law, the limitations period for a minor on a health care liability
  12-18  claim begins to run not later than the date on which the first
  12-19  action on the claim is commenced, if the action is commenced in a
  12-20  court of competent jurisdiction and the minor is represented by an
  12-21  attorney licensed to practice law in the jurisdiction in which the
  12-22  action is commenced.
  12-23        (b)  If filing an action causes a minor's statute of
  12-24  limitations to begin to run under Subsection (a) of this section,
  12-25  the court may not permit termination of the minor's action with
  12-26  respect to all parties until the court has appointed an attorney ad
  12-27  litem experienced in the trial of health care liability claims or
   13-1  personal injury claims to represent the interests of the minor and
   13-2  to advise the court regarding the minor's interests.  In this
   13-3  subsection, "termination of the minor's action" means the entry of
   13-4  a nonsuit, dismissal of the claim with or without prejudice, or
   13-5  dismissal of the claim for want of prosecution.  <Causes of action
   13-6  accruing between the effective date of this Act and the effective
   13-7  date of Article 5.82, Insurance Code, shall be filed pursuant to
   13-8  Section 4 of Article 5.82.>
   13-9        SECTION 5.  This Act takes effect September 1, 1995.
  13-10        SECTION 6.  Except as provided by Section 7 of this Act, this
  13-11  Act applies only to a cause of action that accrues on or after the
  13-12  effective date of this Act.  An action that accrued before the
  13-13  effective date of this Act is governed by the law applicable to the
  13-14  action immediately before the effective date of this Act, and that
  13-15  law is continued in effect for that purpose.
  13-16        SECTION 7.  Sections 13.01 and 14.01, Medical Liability and
  13-17  Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
  13-18  Civil Statutes), as amended by this Act, apply only to a health
  13-19  care liability claim filed on or after the effective date of this
  13-20  Act.  A health care liability claim filed before the effective date
  13-21  of this Act is governed by the law applicable to the claim as it
  13-22  existed immediately before the effective date of this Act, and that
  13-23  law is continued in effect for that purpose.
  13-24        SECTION 8.  The importance of this legislation and the
  13-25  crowded condition of the calendars in both houses create an
  13-26  emergency and an imperative public necessity that the
  13-27  constitutional rule requiring bills to be read on three several
   14-1  days in each house be suspended, and this rule is hereby suspended.