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.