By: Bernsen S.B. No. 1106
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the application of the Medical Liability and Insurance
1-3 Improvement Act of Texas to optometrists and therapeutic
1-4 optometrists.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subdivision (3), Subsection (a), Section 1.03,
1-7 Medical Liability and Insurance Improvement Act of Texas (Article
1-8 4590i, Vernon's Texas Civil Statutes), is amended to read as
1-9 follows:
1-10 (3) "Health care provider" means any person,
1-11 partnership, professional association, corporation, facility, or
1-12 institution duly licensed or chartered by the State of Texas to
1-13 provide health care as a registered nurse, hospital, dentist,
1-14 podiatrist, pharmacist, optometrist or therapeutic optometrist, or
1-15 nursing home, or an officer, employee, or agent thereof acting in
1-16 the course and scope of his employment.
1-17 SECTION 2. This Act takes effect September 1, 2001, and
1-18 applies only to a cause of action that accrues on or after that
1-19 date. A cause of action that accrued before the effective date of
1-20 this Act is governed by the law applicable to the action
1-21 immediately before the effective date of this Act, and that law is
1-22 continued in effect for that purpose.
1-23 COMMITTEE AMENDMENT NO. 1
1-24 Amends S.B. 1106 by inserting a new SECTION 2 to read as
1-25 follows and by renumbering the remaining SECTIONS appropriately:
2-1 SECTION 2. Subchapter M, Subsections (f), (g), (j), (k), and
2-2 (l), Section 13.01, Medical Liability and Insurance Improvement Act
2-3 of Texas (Article 4590i, Vernon's Texas Civil Statutes) to read as
2-4 follows:
2-5 (f) The court may, for good cause shown after motion and
2-6 hearing, extend any time period specified in Subsection (d) of this
2-7 section for an additional 30 days past the 180th day after the date
2-8 on which the health care liability claim was filed. Only one
2-9 extension may be granted under this subsection. Any motion filed
2-10 under this subsection seeking an extension of time must be filed
2-11 with the court prior to the expiration of the time period
2-12 established in Subsection (d). If the ruling on such motion is not
2-13 made by the court until after the expiration of such time period,
2-14 the 30-day extension shall be measured from the date of the ruling
2-15 rather than from the 180th day after the date on which the health
2-16 care liability claim was filed.
2-17 (g) Notwithstanding any other provision of this section, if
2-18 a claimant has failed to comply with a deadline established by
2-19 Subsection (d) of this section and after hearing the court finds
2-20 that the failure of the claimant or the claimant's attorney was
2-21 [not intentional or] the result of [conscious indifference but was
2-22 the result of an accident] a clerical, administrative, electronic,
2-23 or machine error or mistake, the court shall grant a grace period
2-24 of 30 days to permit the claimant to comply with that subsection.
2-25 A motion by a claimant for relief under this subsection shall be
2-26 considered timely if it is filed before any hearing on a motion by
3-1 a defendant under Subsection (e) of this section. If the court
3-2 grants relief under this subsection, it shall state on the record
3-3 or in a written order the factual and legal basis for its decision.
3-4 (j) Nothing in this section shall be construed to require
3-5 the [filing] furnishing of an expert report regarding any issue
3-6 other than an issue relating to liability or causation.
3-7 (k) Notwithstanding any other law, an expert report [filed]
3-8 furnished under this section:
3-9 (1) is not admissible in evidence by a defendant;
3-10 (2) shall not be used in a deposition, trial, or other
3-11 proceeding; and
3-12 (3) shall not be referred to by a defendant during the
3-13 course of the action for any purpose, however, notwithstanding the
3-14 restrictions in Subsection (k)(1), (2) and (3), if the party
3-15 producing an expert report under this subsection utilizes that
3-16 report to support or oppose a motion for summary judgment or a
3-17 motion to exclude expert testimony as being scientifically
3-18 unreliable under the Texas Rules of Evidence, then the restrictions
3-19 upon the use of such report set forth in Subsections (k)(1), (2)
3-20 and (3) shall be deemed waived.
3-21 (l)(1) A court shall grant a motion challenging the adequacy
3-22 of an expert report only if it appears to the court, after hearing,
3-23 that the report does not represent a good faith effort to comply
3-24 with the definition of an expert report in Subsection (r)(6) of
3-25 this section.
3-26 (l)(2) The procedures set forth in this Subsection (l)(2)
4-1 are available only to a claimant in a health care liability claim
4-2 with respect to an expert report that is furnished on or before the
4-3 150th day after the date on which the health care liability claim
4-4 was filed. An objection to the sufficiency of an expert report
4-5 under Subsection (l)(1) must be made not later than the 21st day
4-6 after the date the objecting party receives a copy of the expert
4-7 report. The court shall conduct a hearing to determine any
4-8 objection to the sufficiency of any expert report under Subsection
4-9 (l)(1) as soon as practicable after the filing of an objection. In
4-10 the event the court finds the report to be insufficient pursuant to
4-11 this subsection, then the claimant shall have thirty (30) days
4-12 after the order is signed to comply and provide a sufficient
4-13 report. No sanctions shall be entered pursuant to Subsection (e)
4-14 until after the claimant has failed to comply with the order
4-15 striking the expert report. Failure to object to the expert report
4-16 within the time allowed under this Subsection (l)(2) results in a
4-17 waiver of any deficiencies of the expert report.
4-18 Janek