By Sibley S.B. No. 30
74R2954 DLF-F
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. The Medical Liability and Insurance Improvement
1-5 Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) is
1-6 amended by adding Subchapter H to read as follows:
1-7 SUBCHAPTER H. BAD FAITH CLAIM
1-8 Sec. 8.01. RECOVERY FOR BAD FAITH CLAIM AUTHORIZED. (a) A
1-9 party who brings a claim in bad faith and that party's attorney are
1-10 liable to an opposing party for damages that result from the claim.
1-11 (b) A cause of action under this section may be litigated
1-12 separately from the health care liability claim.
1-13 (c) This section applies only to a claim made in bad faith
1-14 by a party to a health care liability claim, including the health
1-15 care liability claim, a counterclaim, or a cross-claim.
1-16 Sec. 8.02. BAD FAITH CLAIM. A claim is made in bad faith
1-17 for purposes of this subchapter if the party or the party's
1-18 attorney files or continues to maintain the claim:
1-19 (1) with knowledge that reasonable grounds do not
1-20 exist for asserting the claim; or
1-21 (2) with reckless disregard as to whether reasonable
1-22 grounds exist for asserting the claim.
1-23 Sec. 8.03. NOTICE. (a) A person who intends to file a
1-24 cause of action under this subchapter must provide written notice
2-1 of that intent to the person or the attorney for the person against
2-2 whom the action will be filed.
2-3 (b) A person may not file a cause of action under this
2-4 subchapter before the 60th day after the date the notice required
2-5 by this section is given.
2-6 (c) The notice must be given by certified mail, return
2-7 receipt requested.
2-8 SECTION 2. Section 11.02(a), Medical Liability and Insurance
2-9 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
2-10 Statutes), is amended to read as follows:
2-11 (a) In an action on a health care liability claim where
2-12 final judgment is awarded to the claimant, the combined total
2-13 amount of recovery for civil liability for the claimant, including
2-14 any amount awarded under Subchapter P of this Act, may not
2-15 <rendered against a physician or health care provider, the limit of
2-16 civil liability for damages of the physician or health care
2-17 provider shall be limited to an amount not to> exceed $500,000.
2-18 SECTION 3. Section 12.01(a), Medical Liability and Insurance
2-19 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
2-20 Statutes), is amended to read as follows:
2-21 (a) Notwithstanding any other law, no provisions of
2-22 Subchapter E, Chapter 17 <Sections 17.41-17.63>, Business &
2-23 Commerce Code, shall apply to physicians or health care providers
2-24 as defined in Section 1.03(3) of this Act, with respect to claims
2-25 for damages for personal injury or death resulting, or alleged to
2-26 have resulted, from negligence, from breach of warranty, including
2-27 an implied warranty for good and workmanlike service, from breach
3-1 of an implied contract, or from misrepresentation on the part of
3-2 any physician or health care provider.
3-3 SECTION 4. Sections 13.01(a), (b), (c), and (e), Medical
3-4 Liability and Insurance Improvement Act of Texas (Article 4590i,
3-5 Vernon's Texas Civil Statutes), are amended to read as follows:
3-6 (a) In a health care liability claim, the plaintiff's
3-7 attorney or, if the plaintiff is not represented by an attorney,
3-8 the plaintiff shall, on <within 90 days after> the date the action
3-9 is <was> commenced, file an affidavit attesting that the attorney
3-10 or plaintiff has obtained a written opinion from an expert who has
3-11 knowledge of accepted standards of care for the diagnosis, care, or
3-12 treatment of the illness, injury, or condition involved in the
3-13 claim, that the acts or omissions of the physician or health care
3-14 provider were negligent and a proximate cause of the injury, harm,
3-15 or damages claimed.
3-16 (b) A plaintiff or plaintiff's attorney shall be deemed to
3-17 be in compliance with Subsection (a) of this section if, on <within
3-18 90 days after> the date the action is <was> commenced, the
3-19 plaintiff posts a bond with surety or any other equivalent security
3-20 approved by the court, including cash in an escrow account, for
3-21 costs in an amount of $2,000.
3-22 (c) If on <the expiration of the 90th day after> the date
3-23 the action is <was> commenced or the expiration of the extension
3-24 period described in Subsection (d) of this section<, whichever is
3-25 later,> the plaintiff has failed to post security as described in
3-26 Subsection (b) of this section or alternatively has failed to file
3-27 an affidavit as described in Subsection (a) of this section, then
4-1 the court on the motion of any party or on the court's own motion
4-2 shall increase the amount of security required by Subsection (b) of
4-3 this section to an amount not to exceed $4,000. If the plaintiff
4-4 fails to post the increased security within 30 days after being
4-5 served with a copy of the court's order or fails to provide an
4-6 affidavit as provided by Subsection (a) of this section, the court
4-7 shall on motion unless good cause is shown for such failure dismiss
4-8 the action with <without> prejudice to its refiling and assess
4-9 costs of court against plaintiff.
4-10 (e) Discovery concerning the affidavit, including the
4-11 written opinion and the identity of the physician or health care
4-12 provider who supplied the opinion, shall <not> be allowed <unless
4-13 the physician or health care provider who supplied the opinion is
4-14 designated as an expert witness by the plaintiff>.
4-15 SECTION 5. Section 14.01(a), Medical Liability and Insurance
4-16 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
4-17 Statutes), is amended to read as follows:
4-18 (a) In a suit involving a health care liability claim
4-19 against a physician for injury to or death of a patient, a person
4-20 may qualify as an expert witness on the issue of whether the
4-21 physician departed from accepted standards of medical care only if
4-22 the person is a physician who:
4-23 (1) <the person> is practicing at the time such
4-24 testimony is given or was practicing at the time the claim arose;
4-25 (2) held a license to practice in this state at the
4-26 time the claim arose;
4-27 (3) <and> has knowledge of accepted standards of
5-1 medical care for the diagnosis, care, or treatment of the illness,
5-2 injury, or condition involved in the claim; <or>
5-3 (4) is board certified or has the equivalent training
5-4 and experience in the medical specialty relevant to the claim; and
5-5 (5) is familiar with clinical practice in the medical
5-6 specialty relevant to the claim and held hospital staff privileges
5-7 at the time the claim arose that allowed the performance of the
5-8 procedure or treatment at issue in the claim
5-9 <(2) the court, after a hearing conducted outside the
5-10 presence of the jury, determines that the person is otherwise
5-11 qualified to give expert testimony on said issue>.
5-12 SECTION 6. The Medical Liability and Insurance Improvement
5-13 Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) is
5-14 amended by adding Subchapters P and Q to read as follows:
5-15 SUBCHAPTER P. LIMITS ON NONECONOMIC DAMAGES
5-16 Sec. 16.01. LIMITS ON NONECONOMIC DAMAGES. (a) In an
5-17 action on a health care liability claim, the amount of noneconomic
5-18 damages awarded against a physician or health care provider may not
5-19 exceed $250,000.
5-20 (b) For purposes of this section, "noneconomic damages"
5-21 means damages for any past or future nonpecuniary loss, including
5-22 damages for physical pain and suffering, mental anguish and
5-23 suffering, loss of consortium, and disfigurement.
5-24 SUBCHAPTER Q. COLLATERAL SOURCE OF INCOME
5-25 Sec. 17.01. DEFINITION. In this subchapter, "collateral
5-26 source of income" means amounts that are payable:
5-27 (1) to or for the benefit of a patient bringing a
6-1 health care liability claim; and
6-2 (2) as a result of the personal injury or death for
6-3 which the claim was brought.
6-4 Sec. 17.02. REDUCTION OF AWARD. (a) A court shall reduce
6-5 any award of damages to a patient for a health care liability claim
6-6 by the amount of the patient's collateral sources of income.
6-7 (b) In determining the amount of reduction of an award of
6-8 damages to the patient, the court shall receive evidence concerning
6-9 the amount of the patient's collateral sources of income. If the
6-10 claim is tried by a jury, the court shall receive the evidence
6-11 outside the presence of the jury.
6-12 Sec. 17.03. WORKERS' COMPENSATION. This subchapter does not
6-13 apply to workers' compensation benefits received by a patient.
6-14 SECTION 7. Section 6, Article 1.05, Title 79, Revised
6-15 Statutes (Article 5069-1.05, Vernon's Texas Civil Statutes), is
6-16 amended by amending Subsection (a) and adding Subsection (h) to
6-17 read as follows:
6-18 (a) Except as provided by Subsection (h) of this section,
6-19 judgments <Judgments> in wrongful death, personal injury, and
6-20 property damage cases must include prejudgment interest. Except as
6-21 provided by Subsections (b), (c), and (d) of this section,
6-22 prejudgment interest accrues on the amount of the judgment during
6-23 the period beginning on the 180th day after the date the defendant
6-24 receives written notice of a claim or on the day the suit is filed,
6-25 whichever occurs first, and ending on the day preceding the date
6-26 judgment is rendered.
6-27 (h) In an action on a health care liability claim, a court
7-1 may not award prejudgment interest for any part of a judgment
7-2 attributable to damages awarded to compensate the claimant for loss
7-3 the claimant will incur after the date of the judgment, including
7-4 loss for future medical and other expenses, future loss of earning
7-5 capacity or wages, future pain and suffering, future mental anguish
7-6 and suffering, future loss of consortium, and future loss
7-7 associated with disfigurement. In this subsection, "health care
7-8 liability claim" has the meaning assigned by Section 1.03, Medical
7-9 Liability and Insurance Improvement Act of Texas (Article 4590i,
7-10 Vernon's Texas Civil Statutes).
7-11 SECTION 8. Section 11.03, Medical Liability and Insurance
7-12 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
7-13 Statutes), is repealed.
7-14 SECTION 9. This Act takes effect September 1, 1995.
7-15 SECTION 10. Except as provided by Sections 11-13 of this
7-16 Act, this Act applies only to a cause of action that accrues on or
7-17 after the effective date of this Act. An action that accrued
7-18 before the effective date of this Act is governed by the law
7-19 applicable to the action immediately before the effective date of
7-20 this Act, and that law is continued in effect for that purpose.
7-21 SECTION 11. Subchapter H, Medical Liability and Insurance
7-22 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
7-23 Statutes), as added by this Act, applies only to a bad faith claim
7-24 filed on or after the effective date of this Act. A bad faith
7-25 claim filed before the effective date of this Act is governed by
7-26 the law applicable to the claim as it existed immediately before
7-27 the effective date of this Act, and that law is continued in effect
8-1 for that purpose.
8-2 SECTION 12. (a) Sections 11.02(a) and 12.01(a), Medical
8-3 Liability and Insurance Improvement Act of Texas (Article 4590i,
8-4 Vernon's Texas Civil Statutes), as amended by this Act, apply to
8-5 all actions:
8-6 (1) commenced on or after the effective date of this
8-7 Act; or
8-8 (2) pending on that effective date and in which the
8-9 trial, or any new trial or retrial following motion, appeal, or
8-10 otherwise, begins on or after that effective date.
8-11 (b) In an action commenced before the effective date of this
8-12 Act, a trial, new trial, or retrial that is in progress on that
8-13 effective date is governed with respect to the subject matter of
8-14 this Act by the applicable law in effect immediately before that
8-15 effective date, and that law is continued in effect for that
8-16 purpose.
8-17 SECTION 13. Section 13.01, Medical Liability and Insurance
8-18 Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
8-19 Statutes), as amended by this Act, applies only to a health care
8-20 liability claim filed on or after the effective date of this Act.
8-21 A health care liability claim filed before the effective date of
8-22 this Act is governed by the law applicable to the claim as it
8-23 existed immediately before the effective date of this Act, and that
8-24 law is continued in effect for that purpose.
8-25 SECTION 14. Section 14.01(a), Medical Liability and
8-26 Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
8-27 Civil Statutes), as amended by this Act, applies only to the
9-1 qualification of an expert witness on or after the effective date
9-2 of this Act. The qualification of an expert witness before the
9-3 effective date of this Act is governed by the law applicable to the
9-4 qualification of the witness as it existed immediately before the
9-5 effective date of this Act, and that law is continued in effect for
9-6 that purpose.
9-7 SECTION 15. The importance of this legislation and the
9-8 crowded condition of the calendars in both houses create an
9-9 emergency and an imperative public necessity that the
9-10 constitutional rule requiring bills to be read on three several
9-11 days in each house be suspended, and this rule is hereby suspended.