By Hunter of Nueces, Junell, Duncan, et al. H.B. No. 971
Substitute the following for H.B. No. 971:
By Hunter of Nueces C.S.H.B. No. 971
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" mean 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" mean 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.