By Seidlits H.B. No. 3112
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to health care liability claims arising out of the
1-3 provision of emergency medical care.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 1.03(a)(3), Medical Liability and
1-6 Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
1-7 Civil Statutes), is amended to read as follows:
1-8 "(3) "Health care provider" means any person, partnership,
1-9 professional association, corporation, facility, or institution
1-10 duly licensed or chartered by the State of Texas to provide health
1-11 care as a registered nurse, hospital, dentist, podiatrist,
1-12 pharmacist, emergency medical services provider, emergency medical
1-13 services personnel, or nursing home, or an officer, employee, or
1-14 agent thereof acting in the course and scope of his employment."
1-15 SECTION 2. Subchapter G, Medical Liability and Insurance
1-16 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
1-17 Statutes), is amended by adding new Sections 7.03 and 7.04 thereof,
1-18 to read as follows:
1-19 "Sec. 7.03. STANDARD OF PROOF IN CERTAIN CASES. (a) In a
1-20 suit involving a health care liability claim against a physician or
1-21 health care provider for injury to or death of a patient arising
1-22 out of the provision of emergency medical care, the person bringing
1-23 the suit shall prove that the conduct of the physician or health
2-1 care provider departed from accepted standards of medical care or
2-2 health care and was a proximate cause of the injury to or death of
2-3 the patient only if the person shows by clear and convincing
2-4 evidence:
2-5 (1) that the physician or health care provider did not
2-6 use that degree to care and skill that:
2-7 (i) may reasonably be expected of a physician or
2-8 health care provider of ordinary prudence in the same or similar
2-9 circumstances; and
2-10 (ii) is commensurate with the care and skill of
2-11 other physicians or health care providers of similar training,
2-12 experience, or certification; and
2-13 (2) such conduct was a proximate cause of the injury
2-14 to or death of the patient.
2-15 (b) In an action for damages that involves a claim of
2-16 negligence arising from the provision of emergency medical care,
2-17 the court shall instruct the trier of fact to consider, together
2-18 with all other relevant matters:
2-19 (1) whether the person providing care lacked the
2-20 patient's medical history or was unable to obtain a full medical
2-21 history, including the knowledge of preexisting medical conditions,
2-22 allergies, and medications;
2-23 (2) the lack of a preexisting physician-patient
2-24 relationship;
2-25 (3) the circumstances constituting the emergency; and
3-1 (4) the circumstances surrounding the delivery of the
3-2 emergency medical care.
3-3 (c) The provisions of Subsections (a) and (b) of this
3-4 Section do not apply to medical care or treatment:
3-5 (1) that occurs after the patient is stabilized and is
3-6 capable of receiving medical treatment as a nonemergency patient;
3-7 or
3-8 (2) that is unrelated to the original medical
3-9 emergency.
3-10 (d) In this section, "emergency medical care" has the
3-11 meaning assigned by Section 773.003(19), Health and Safety Code.
3-12 Sec. 7.04. CONFLICT WITH TEXAS RULES OF CIVIL EVIDENCE. (a)
3-13 To the extent that this subchapter conflicts with the Texas Rules
3-14 of Civil Evidence, this subchapter controls.
3-15 (b) Notwithstanding Section 22.004, Government Code, the
3-16 Supreme Court may not adopt or promulgate rules or amendments to
3-17 rules in conflict with this subchapter."
3-18 SECTION 3. Section 14.01, Medical Liability and Insurance
3-19 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
3-20 Statutes), is amended by inserting a new subsection (b) and
3-21 amending and relettering the remaining subsection thereof, to read
3-22 as follows:
3-23 "(b) In a suit involving a health care liability claim
3-24 against a physician or health care provider for injury to or death
3-25 of a patient arising out of the provision of emergency medical
4-1 care, a person may qualify as an expert witness on the issue of
4-2 whether the physician or health care provider departed from
4-3 accepted standards of medical care or health care only if:
4-4 (1) for a claim against a physician or health care
4-5 provider who is certified in a specialty by a nationally recognized
4-6 private medical or health professional specialty organization, the
4-7 person was actively practicing in the same specialty as the person
4-8 against whom the claim is brought at the time the claim arose; had
4-9 been certified in that specialty for a period of not less than
4-10 three years preceding the filing of the claim; has actual knowledge
4-11 of accepted standards of medical care or health care for the
4-12 diagnosis, care or, treatment of the illness, injury or condition
4-13 involved in the claim; is familiar with clinical practice in the
4-14 same specialty; and, if the person is a physician or other health
4-15 care provider qualified to hold hospital staff privileges, held
4-16 hospital staff privileges at the time the claim arose that allowed
4-17 the performance of the procedure or treatment at issue in the
4-18 claim; or
4-19 (2) for a claim against a physician or health care
4-20 provider who is not certified in a specialty by a nationally
4-21 recognized private medical or health professional specialty
4-22 organization, the person was actively practicing in the same or
4-23 similar medical or health care field at the time the claim arose;
4-24 has actual knowledge of accepted standards of medical care or
4-25 health care for the diagnosis, care, or treatment of the illness,
5-1 injury, or condition involved in the claim; is familiar with
5-2 clinical practice in the field relevant to the claim; and, if a
5-3 physician or other health care provider qualified to hold hospital
5-4 staff privileges, held hospital staff privileges at the time the
5-5 claim arose that allowed the performance of the procedure or
5-6 treatment at issue in the claim.
5-7 (c) <(b)> For the purposes of subsection (a) of this
5-8 section, "practicing" includes, but is not limited to, training
5-9 residents or students at an accredited school of medicine or
5-10 osteopathy or serving as a consulting physician to other physicians
5-11 who provide direct patient care, upon the request of such other
5-12 physicians. For the purposes of subsection (b) of this section,
5-13 "actively practicing" includes, but is not limited to, training
5-14 residents or students at an accredited school of medicine or
5-15 osteopathy or other health care profession, serving as a consulting
5-16 physician or health care professional to other physicians or health
5-17 care professionals who provide direct patient care, upon the
5-18 request of such other physicians or health care professionals, or
5-19 providing direct patient care for an average of forty (40) hours
5-20 per month.
5-21 SECTION 4. This Act takes effect September 1, 1995.
5-22 SECTION 5. Except as provided by Section 6 and 7 of this
5-23 Act, this Act applies only to a cause of action that accrues on or
5-24 after the effective date of this Act. An action that accrued
5-25 before the effective date of this Act is governed by the law
6-1 applicable to the action immediately before the effective date of
6-2 this Act, and that law is continued in effect for that purpose.
6-3 SECTION 6. Subchapter G, Medical Liability and Insurance
6-4 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
6-5 Statutes), as amended by this Act, applies to all actions:
6-6 (1) commenced on or after the effective date of this
6-7 Act; or
6-8 (2) pending on that effective date and in which the
6-9 trial, or any new trial or retrial following motion, appeal, or
6-10 otherwise, begins on or after that effective date.
6-11 SECTION 7. Section 14.01, Medical Liability and Insurance
6-12 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
6-13 Statutes), as amended by this Act, applies only to the
6-14 qualification of an expert witness on or after the effective date
6-15 of this act. The qualification of an expert witness before the
6-16 effective date of this Act is governed by the law applicable to the
6-17 qualification of the witness as it existed immediately before the
6-18 effective date of this Act, and that law is continued in effect for
6-19 that purpose.
6-20 SECTION 8. The importance of this legislation and the
6-21 crowded condition of the calendars in both houses create an
6-22 emergency and an imperative public necessity that the
6-23 constitutional rule requiring bills to be read on three several
6-24 days in each house be suspended, and this rule is hereby suspended.