1-1 By: Hunter of Nueces, et al. H.B. No. 971
1-2 (Senate Sponsor - Sibley)
1-3 (In the Senate - Received from the House April 18, 1995;
1-4 April 19, 1995, read first time and referred to Committee on
1-5 Economic Development; April 28, 1995, reported adversely, with
1-6 favorable Committee Substitute by the following vote: Yeas 10,
1-7 Nays 0; April 28, 1995, sent to printer.)
1-8 COMMITTEE SUBSTITUTE FOR H.B. No. 971 By: Sibley
1-9 A BILL TO BE ENTITLED
1-10 AN ACT
1-11 relating to health care liability claims.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 13.01, Medical Liability and Insurance
1-14 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
1-15 Statutes), is amended to read as follows:
1-16 Sec. 13.01. <Affidavit or> Cost Bond, Deposit, and Expert
1-17 Report. (a) In a health care liability claim, a claimant shall,
1-18 not later than the 90th day after the date the claim is filed:
1-19 (1) file a separate cost bond in the amount of $5,000
1-20 for each physician or health care provider named by the claimant in
1-21 the action;
1-22 (2) place cash in an escrow account in the amount of
1-23 $5,000 for each physician or health care provider named in the
1-24 action; or
1-25 (3) file an expert report for each physician or health
1-26 care provider with respect to whom a cost bond has not been filed
1-27 and cash in lieu of the bond has not been deposited under
1-28 Subdivision (1) or (2) of this subsection <the plaintiff's
1-29 attorney or, if the plaintiff is not represented by an attorney,
1-30 the plaintiff shall, within 90 days after the date the action was
1-31 commenced, file an affidavit attesting that the attorney or
1-32 plaintiff has obtained a written opinion from an expert who has
1-33 knowledge of accepted standards of care for the diagnosis, care, or
1-34 treatment of the illness, injury, or condition involved in the
1-35 claim, that the acts or omissions of the physician or health care
1-36 provider were negligent and a proximate cause of the injury, harm,
1-37 or damages claimed>.
1-38 (b) If, as to a defendant physician or health care provider,
1-39 an expert report, cost bond, or cash in lieu of bond has not been
1-40 filed or deposited within the period specified by Subsection (a) or
1-41 (h) of this section, the court, on the motion of the affected
1-42 physician or health care provider, shall enter an order that:
1-43 (1) requires the filing of a $7,500 cost bond with
1-44 respect to the physician or health care provider not later than the
1-45 21st day after the date of the order; and
1-46 (2) provides that if the claimant fails to comply with
1-47 the order, the action shall be dismissed for want of prosecution
1-48 with respect to the physician or health care provider, subject to
1-49 reinstatement in accordance with the applicable rules of civil
1-50 procedure and Subsection (c) of this section. <A plaintiff or
1-51 plaintiff's attorney shall be deemed to be in compliance with
1-52 Subsection (a) of this section if, within 90 days after the date
1-53 the action was commenced, the plaintiff posts a bond with surety or
1-54 any other equivalent security approved by the court, including cash
1-55 in an escrow account, for costs in an amount of $2,000.>
1-56 (c) Before a claim that has been dismissed under Subsection
1-57 (b)(2) of this section may be reinstated, the claimant must pay the
1-58 costs of court incurred by the defendant before the dismissal and
1-59 file a $7,500 cost bond for each defendant physician or health care
1-60 provider. <If on the expiration of the 90th day after the date the
1-61 action was commenced or the expiration of the extension period
1-62 described in Subsection (d) of this section, whichever is later,
1-63 the plaintiff has failed to post security as described in
1-64 Subsection (b) of this section or alternatively has failed to file
1-65 an affidavit as described in Subsection (a) of this section, then
1-66 the court on the motion of any party or on the court's own motion
1-67 shall increase the amount of security required by Subsection (b) of
1-68 this section to an amount not to exceed $4,000. If the plaintiff
2-1 fails to post the increased security within 30 days after being
2-2 served with a copy of the court's order or fails to provide an
2-3 affidavit as provided by Subsection (a) of this section, the court
2-4 shall on motion unless good cause is shown for such failure dismiss
2-5 the action without prejudice to its refiling and assess costs of
2-6 court against plaintiff.>
2-7 (d) Not later than the later of the 180th day after the date
2-8 on which a health care liability claim is filed or the last day of
2-9 any extended period established under Subsection (f) or (h) of this
2-10 section, the claimant shall, for each physician or health care
2-11 provider against whom a claim is asserted:
2-12 (1) furnish to counsel for each physician or health
2-13 care provider one or more expert reports, with a curriculum vitae
2-14 of each expert listed in the report; or
2-15 (2) voluntarily nonsuit the action against the
2-16 physician or health care provider. <The court on motion of any
2-17 party and for good cause shown may extend the time for the
2-18 plaintiff to comply with Subsection (a) or (b) of this section for
2-19 a period not to exceed 90 days. The time for the plaintiff to
2-20 comply with Subsection (a) or (b) of this section may also be
2-21 extended by written agreement of the parties filed with the court.>
2-22 (e) If a claimant has failed, for any defendant physician or
2-23 health care provider, to comply with Subsection (d) of this section
2-24 within the time required, the court shall, on the motion of the
2-25 affected physician or health care provider, enter an order awarding
2-26 as sanctions against the claimant or the claimant's attorney:
2-27 (1) the reasonable attorney's fees and costs of court
2-28 incurred by that defendant;
2-29 (2) the forfeiture of any cost bond respecting the
2-30 claimant's claim against that defendant to the extent necessary to
2-31 pay the award; and
2-32 (3) the dismissal of the action of the claimant
2-33 against that defendant with prejudice to the claim's refiling
2-34 <Discovery concerning the affidavit, including the written opinion
2-35 and the identity of the physician or health care provider who
2-36 supplied the opinion, shall not be allowed unless the physician or
2-37 health care provider who supplied the opinion is designated as an
2-38 expert witness by the plaintiff>.
2-39 (f) The court may, for good cause shown after motion and
2-40 hearing, extend any time period specified in Subsection (d) of this
2-41 section for an additional 30 days. Only one extension may be
2-42 granted under this subsection.
2-43 (g) Notwithstanding any other provision of this section, if
2-44 a claimant has failed to comply with a deadline established by
2-45 Subsection (d) of this section and after hearing the court finds
2-46 that the failure of the claimant or the claimant's attorney was not
2-47 intentional or the result of conscious indifference but was the
2-48 result of an accident or mistake, the court shall grant a grace
2-49 period of 30 days to permit the claimant to comply with that
2-50 subsection. A motion by a claimant for relief under this
2-51 subsection shall be considered timely if it is filed before any
2-52 hearing on a motion by a defendant under Subsection (e) of this
2-53 section.
2-54 (h) The affected parties may agree to extend any time period
2-55 specified in Subsection (a) or (d) of this section. An agreement
2-56 under this subsection is binding and shall be honored by the court
2-57 if signed by the affected parties or their counsel and filed with
2-58 the court.
2-59 (i) Notwithstanding any other provision of this section, a
2-60 claimant may satisfy any requirement of this section for filing an
2-61 expert report by filing reports of separate experts regarding
2-62 different physicians or health care providers or regarding
2-63 different issues arising from the conduct of a physician or health
2-64 care provider, such as issues of liability and causation. Nothing
2-65 in this section shall be construed to mean that a single expert
2-66 must address all liability and causation issues with respect to all
2-67 physicians or health care providers or with respect to both
2-68 liability and causation issues for a physician or health care
2-69 provider.
2-70 (j) Nothing in this section shall be construed to require
3-1 the filing of an expert report regarding any issue other than an
3-2 issue relating to liability or causation.
3-3 (k) Notwithstanding any other law, an expert report filed
3-4 under this section:
3-5 (1) is not admissible in evidence by a defendant;
3-6 (2) shall not be used in a deposition, trial, or other
3-7 proceeding; and
3-8 (3) shall not be referred to by a defendant during the
3-9 course of the action for any purpose.
3-10 (l) A court shall grant a motion challenging the adequacy of
3-11 an expert report only if it appears to the court, after hearing,
3-12 that the report does not represent a good faith effort to comply
3-13 with the definition of an expert report in Subsection (r)(6) of
3-14 this section.
3-15 (m) On the claimant's compliance with the requirements of
3-16 Subsection (d) of this section:
3-17 (1) any cost bond filed or cash deposited in an escrow
3-18 account by the claimant under this section shall be released;
3-19 (2) the claimant, the claimant's counsel, and any
3-20 surety have no liability on the cost bond or cash deposit; and
3-21 (3) an execution shall not be issued on the cost bond
3-22 or cash deposit.
3-23 (n) If a claimant nonsuits a health care liability claim
3-24 against a physician or health care provider before filing a cost
3-25 bond and seeks to refile the same or a similar health care
3-26 liability claim against the physician or health care provider, the
3-27 claimant shall file a $7,500 cost bond for each previously
3-28 nonsuited physician or health care provider at the time of the
3-29 filing of the health care liability claim. If the claimant fails
3-30 to file the $7,500 cost bond for each physician or health care
3-31 provider, on motion and hearing the court shall order the filing of
3-32 the cost bond and the claimant shall pay the movant reasonable
3-33 attorney's fees incurred in obtaining relief under this subsection.
3-34 (o) Notwithstanding any other provision of this section, a
3-35 claimant who is proceeding without an attorney and who is unable to
3-36 afford a cost bond or cash deposit may, in lieu of a cost bond or
3-37 cash deposit, file an affidavit in the same form required for an
3-38 affidavit in lieu of security for costs under the Texas Rules of
3-39 Civil Procedure.
3-40 (p) In the event of a conflict between this section and
3-41 another law, including a rule of procedure or court rule, this
3-42 section controls to the extent of the conflict.
3-43 (q) Notwithstanding the provisions of Section 22.004,
3-44 Government Code, the supreme court may not amend or adopt rules in
3-45 conflict with this section. The district courts and statutory
3-46 county courts in a county may not adopt local rules in conflict
3-47 with this section.
3-48 (r) In this section:
3-49 (1) "Affected parties" means the claimant and the
3-50 physician or health care provider who are directly affected by an
3-51 act or agreement required or permitted by this section and does not
3-52 include other parties to an action who are not directly affected by
3-53 that particular act or agreement.
3-54 (2) "Claim" means a health care liability claim.
3-55 (3) "Claimant" means a party who files a pleading
3-56 asserting a claim. All plaintiffs claiming to have sustained
3-57 damages as the result of the bodily injury or death of a single
3-58 person are considered to be a single claimant.
3-59 (4) "Defendant" means a physician or health care
3-60 provider against whom a health care liability claim is asserted.
3-61 The term includes a third-party defendant, cross-defendant, or
3-62 counterdefendant.
3-63 (5) "Expert" means:
3-64 (A) with respect to a person giving opinion
3-65 testimony regarding whether a physician departed from accepted
3-66 standards of medical care, an expert qualified to testify under the
3-67 requirements of Section 14.01(a) of this Act; or
3-68 (B) with respect to a person giving opinion
3-69 testimony about a nonphysician health care provider, an expert who
3-70 has knowledge of accepted standards of care for the diagnosis,
4-1 care, or treatment of the illness, injury, or condition involved in
4-2 the claim.
4-3 (6) "Expert report" means a written report by an
4-4 expert that provides a fair summary of the expert's opinions as of
4-5 the date of the report regarding applicable standards of care, the
4-6 manner in which the care rendered by the physician or health care
4-7 provider failed to meet the standards, and the causal relationship
4-8 between that failure and the injury, harm, or damages claimed.
4-9 SECTION 2. Section 14.01, Medical Liability and Insurance
4-10 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
4-11 Statutes), is amended to read as follows:
4-12 Sec. 14.01. Qualification of expert witness in suit against
4-13 physician. (a) In a suit involving a health care liability claim
4-14 against a physician for injury to or death of a patient, a person
4-15 may qualify as an expert witness on the issue of whether the
4-16 physician departed from accepted standards of medical care only if
4-17 the person is a physician who:
4-18 (1) <the person> is practicing medicine at the time
4-19 such testimony is given or was practicing medicine at the time the
4-20 claim arose;
4-21 (2) <and> has knowledge of accepted standards of
4-22 medical care for the diagnosis, care, or treatment of the illness,
4-23 injury, or condition involved in the claim; and
4-24 (3) is qualified on the basis of training or
4-25 experience to offer an expert opinion regarding those accepted
4-26 standards of medical care. <or>
4-27 <(2) the court, after a hearing conducted outside the
4-28 presence of the jury, determines that the person is otherwise
4-29 qualified to give expert testimony on said issue.>
4-30 (b) For the purpose of this section, "practicing medicine"
4-31 or "medical practice" includes, but is not limited to, training
4-32 residents or students at an accredited school of medicine or
4-33 osteopathy or serving as a consulting physician to other physicians
4-34 who provide direct patient care, upon the request of such other
4-35 physicians.
4-36 (c) In determining whether a witness is qualified on the
4-37 basis of training or experience, the court shall consider whether,
4-38 at the time the claim arose or at the time the testimony is given,
4-39 the witness:
4-40 (1) is board certified or has other substantial
4-41 training or experience in an area of medical practice relevant to
4-42 the claim; and
4-43 (2) is actively practicing medicine in rendering
4-44 medical care services relevant to the claim.
4-45 (d) The court shall apply the criteria specified in
4-46 Subsections (a), (b), and (c) of this section in determining
4-47 whether an expert is qualified to offer expert testimony on the
4-48 issue of whether the physician departed from accepted standards of
4-49 medical care, but may depart from those criteria if, under the
4-50 circumstances, the court determines that there is a good reason to
4-51 admit the expert's testimony. The court shall state on the record
4-52 the reason for admitting the testimony if the court departs from
4-53 the criteria.
4-54 (e) A pretrial objection to the qualifications of a witness
4-55 under this section must be made not later than the later of the
4-56 21st day after the date the objecting party receives a copy of the
4-57 witness's curriculum vitae or the date of the witness's deposition.
4-58 If circumstances arise after the date on which the objection must
4-59 be made that could not have been reasonably anticipated by a party
4-60 before that date and that the party believes in good faith provide
4-61 a basis for an objection to a witness's qualifications, and if an
4-62 objection was not made previously, this subsection does not prevent
4-63 the party from making an objection as soon as practicable under the
4-64 circumstances. The court shall conduct a hearing to determine
4-65 whether the witness is qualified as soon as practicable after the
4-66 filing of an objection and, if possible, before trial. If the
4-67 objecting party is unable to object in time for the hearing to be
4-68 conducted before the trial, the hearing shall be conducted outside
4-69 the presence of the jury. This subsection does not prevent a party
4-70 from examining or cross-examining a witness at trial about the
5-1 witness's qualifications.
5-2 (f) This section does not prevent a physician who is a
5-3 defendant from qualifying as an expert.
5-4 SECTION 3. The Medical Liability and Insurance Improvement
5-5 Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) is
5-6 amended by adding Subchapter P to read as follows:
5-7 SUBCHAPTER P. PREJUDGMENT INTEREST
5-8 Sec. 16.01. APPLICATION OF OTHER LAW. Notwithstanding
5-9 Sections 6(a)-(f), Article 1.05, Title 79, Revised Statutes
5-10 (Article 5069-1.05, Vernon's Texas Civil Statutes), prejudgment
5-11 interest in a health care liability claim shall be awarded in
5-12 accordance with this subchapter.
5-13 Sec. 16.02. COMPUTATION OF PREJUDGMENT INTEREST. (a) In a
5-14 health care liability claim, prejudgment interest may not be
5-15 charged with respect to a defendant physician or health care
5-16 provider who has settled the claim before the 181st day after the
5-17 date notice of the claim was first mailed to the physician or
5-18 health care provider.
5-19 (b) In a health care liability claim that is not settled
5-20 within the period specified by Subsection (a) of this section, the
5-21 judgment must include prejudgment interest on past damages found by
5-22 the trier of fact, but shall not include prejudgment interest on
5-23 future damages found by the trier of fact.
5-24 (c) Prejudgment interest allowed under this subchapter shall
5-25 be computed in accordance with Section 6(g), Article 1.05, Title
5-26 79, Revised Statutes (Article 5069-1.05, Vernon's Texas Civil
5-27 Statutes), for a period beginning on the date of injury and ending
5-28 on the date before the date the judgment is signed.
5-29 (d) In this section:
5-30 (1) "Past damages" means damages awarded to compensate
5-31 the claimant for loss the claimant will incur for a period
5-32 beginning on the date of injury and ending on the date before the
5-33 date of judgment.
5-34 (2) "Future damages" means damages awarded to
5-35 compensate the claimant for loss the claimant will incur after the
5-36 date of judgment.
5-37 SECTION 4. This Act takes effect September 1, 1995.
5-38 SECTION 5. Except as provided by Section 6 of this Act, this
5-39 Act applies only to a cause of action that accrues on or after the
5-40 effective date of this Act. An action that accrued before the
5-41 effective date of this Act is governed by the law applicable to the
5-42 action immediately before the effective date of this Act, and that
5-43 law is continued in effect for that purpose.
5-44 SECTION 6. Sections 13.01 and 14.01, Medical Liability and
5-45 Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
5-46 Civil Statutes), as amended by this Act, apply only to a health
5-47 care liability claim filed on or after the effective date of this
5-48 Act. A health care liability claim filed before the effective date
5-49 of this Act is governed by the law applicable to the claim as it
5-50 existed immediately before the effective date of this Act, and that
5-51 law is continued in effect for that purpose.
5-52 SECTION 7. The importance of this legislation and the
5-53 crowded condition of the calendars in both houses create an
5-54 emergency and an imperative public necessity that the
5-55 constitutional rule requiring bills to be read on three several
5-56 days in each house be suspended, and this rule is hereby suspended.
5-57 * * * * *