H.B. No. 971
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, the
6-24 claimant shall file a $7,500 cost bond for each previously
6-25 nonsuited physician or health care provider at the time of the
6-26 filing of the health care liability claim. If the claimant fails
6-27 to file the $7,500 cost bond for each physician or health care
7-1 provider, on motion and hearing the court shall order the filing of
7-2 the cost bond and the claimant shall pay the movant reasonable
7-3 attorney's fees incurred in obtaining relief under this subsection.
7-4 (o) Notwithstanding any other provision of this section, a
7-5 claimant who is proceeding without an attorney and who is unable to
7-6 afford a cost bond or cash deposit may, in lieu of a cost bond or
7-7 cash deposit, file an affidavit in the same form required for an
7-8 affidavit in lieu of security for costs under the Texas Rules of
7-9 Civil Procedure.
7-10 (p) In the event of a conflict between this section and
7-11 another law, including a rule of procedure or court rule, this
7-12 section controls to the extent of the conflict.
7-13 (q) Notwithstanding the provisions of Section 22.004,
7-14 Government Code, the supreme court may not amend or adopt rules in
7-15 conflict with this section. The district courts and statutory
7-16 county courts in a county may not adopt local rules in conflict
7-17 with this section.
7-18 (r) In this section:
7-19 (1) "Affected parties" means the claimant and the
7-20 physician or health care provider who are directly affected by an
7-21 act or agreement required or permitted by this section and does not
7-22 include other parties to an action who are not directly affected by
7-23 that particular act or agreement.
7-24 (2) "Claim" means a health care liability claim.
7-25 (3) "Claimant" means a party who files a pleading
7-26 asserting a claim. All plaintiffs claiming to have sustained
7-27 damages as the result of the bodily injury or death of a single
8-1 person are considered to be a single claimant.
8-2 (4) "Defendant" means a physician or health care
8-3 provider against whom a health care liability claim is asserted.
8-4 The term includes a third-party defendant, cross-defendant, or
8-5 counterdefendant.
8-6 (5) "Expert" means:
8-7 (A) with respect to a person giving opinion
8-8 testimony regarding whether a physician departed from accepted
8-9 standards of medical care, an expert qualified to testify under the
8-10 requirements of Section 14.01(a) of this Act; or
8-11 (B) with respect to a person giving opinion
8-12 testimony about a nonphysician health care provider, an expert who
8-13 has knowledge of accepted standards of care for the diagnosis,
8-14 care, or treatment of the illness, injury, or condition involved in
8-15 the claim.
8-16 (6) "Expert report" means a written report by an
8-17 expert that provides a fair summary of the expert's opinions as of
8-18 the date of the report regarding applicable standards of care, the
8-19 manner in which the care rendered by the physician or health care
8-20 provider failed to meet the standards, and the causal relationship
8-21 between that failure and the injury, harm, or damages claimed.
8-22 SECTION 2. Section 14.01, Medical Liability and Insurance
8-23 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
8-24 Statutes), is amended to read as follows:
8-25 Sec. 14.01. Qualification of expert witness in suit against
8-26 physician. (a) In a suit involving a health care liability claim
8-27 against a physician for injury to or death of a patient, a person
9-1 may qualify as an expert witness on the issue of whether the
9-2 physician departed from accepted standards of medical care only if
9-3 the person is a physician who:
9-4 (1) <the person> is practicing medicine at the time
9-5 such testimony is given or was practicing medicine at the time the
9-6 claim arose;
9-7 (2) <and> has knowledge of accepted standards of
9-8 medical care for the diagnosis, care, or treatment of the illness,
9-9 injury, or condition involved in the claim; and
9-10 (3) is qualified on the basis of training or
9-11 experience to offer an expert opinion regarding those accepted
9-12 standards of medical care. <or>
9-13 <(2) the court, after a hearing conducted outside the
9-14 presence of the jury, determines that the person is otherwise
9-15 qualified to give expert testimony on said issue.>
9-16 (b) For the purpose of this section, "practicing medicine"
9-17 or "medical practice" includes, but is not limited to, training
9-18 residents or students at an accredited school of medicine or
9-19 osteopathy or serving as a consulting physician to other physicians
9-20 who provide direct patient care, upon the request of such other
9-21 physicians.
9-22 (c) In determining whether a witness is qualified on the
9-23 basis of training or experience, the court shall consider whether,
9-24 at the time the claim arose or at the time the testimony is given,
9-25 the witness:
9-26 (1) is board certified or has other substantial
9-27 training or experience in an area of medical practice relevant to
10-1 the claim; and
10-2 (2) is actively practicing medicine in rendering
10-3 medical care services relevant to the claim.
10-4 (d) The court shall apply the criteria specified in
10-5 Subsections (a), (b), and (c) of this section in determining
10-6 whether an expert is qualified to offer expert testimony on the
10-7 issue of whether the physician departed from accepted standards of
10-8 medical care, but may depart from those criteria if, under the
10-9 circumstances, the court determines that there is a good reason to
10-10 admit the expert's testimony. The court shall state on the record
10-11 the reason for admitting the testimony if the court departs from
10-12 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. This Act takes effect September 1, 1995.
12-13 SECTION 5. Except as provided by Section 6 of this Act, this
12-14 Act applies only to a cause of action that accrues on or after the
12-15 effective date of this Act. An action that accrued before the
12-16 effective date of this Act is governed by the law applicable to the
12-17 action immediately before the effective date of this Act, and that
12-18 law is continued in effect for that purpose.
12-19 SECTION 6. Sections 13.01 and 14.01, Medical Liability and
12-20 Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
12-21 Civil Statutes), as amended by this Act, apply only to a health
12-22 care liability claim filed on or after the effective date of this
12-23 Act. A health care liability claim filed before the effective date
12-24 of this Act is governed by the law applicable to the claim as it
12-25 existed immediately before the effective date of this Act, and that
12-26 law is continued in effect for that purpose.
12-27 SECTION 7. The importance of this legislation and the
13-1 crowded condition of the calendars in both houses create an
13-2 emergency and an imperative public necessity that the
13-3 constitutional rule requiring bills to be read on three several
13-4 days in each house be suspended, and this rule is hereby suspended.