Floor Packet Page No. 11
Substitute the following for CSHB 4.
A BILL TO BE ENTITLED
AN ACT
relating to health care liability claims.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1.03(a), Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by amending Subdivisions (3), (4), and (8)
and adding Subdivisions (10)-(22) to read as follows:
(3)(A) "Health care provider" means any person,
partnership, professional association, corporation, facility, or
institution duly licensed, certified, registered, or chartered by
the State of Texas to provide health care, including:
(i) [as] a registered nurse;
(ii) a [,] hospital;
(iii) a nonprofit hospital system;
(iv) a [,] dentist;
(v) a hospice;
(vi) a [,] podiatrist;
(vii) a [,] pharmicist;
(viii) an emergency medical services
provider;
(ix) an assisted living facility;
(x) a home and community support services
agency;
(xi) an intermediate care facility for the
mentally retarded or a home and community-based services waiver
program for persons with mental retardation adopted in accordance
with
Section 1915(c) of the federal Social Security Act (42 U.S.C.
Section 1396n(c)), as amended; [,] or
(xii) a nursing home.
(B) The term includes:
(i) [, or] an officer, director, shareholder,
member, partner, manager, owner, or affiliate of a health care
provider or physician; and
(ii) an employee, independent contractor, or
agent of a health care provider or physican [thereof] acting in the
course and scope of the [his] employment or contractual
relationship.
(4) "Health care liability claim" means a cause of
action against a health care provider or physician arising out of or
related to [for] treatment, lack of treatment, or other claimed
departure from accepted standards of medical care, [or] health
care, or safety or professional or administrative services practice
or procedure which proximately results in injury to or death of a
claimant [the patient], whether the claimant's [patient's] claim or
cause of action sounds in tort or contract.
(8) "Physician" means:
(A) an individual [a person] licensed to practice
medicine in this state;
(B) a professional association organized under
the Texas Professional Association Act (Article 1528f, Vernon's
Texas Civil Statutes) by an individual physician or group of
physicians;
(C) a partnership or limited liability
partnership formed by a group of physicians;
(D) a nonprofit health corporation certified
under Section 162.001, Occupations Code; or
(E) a company formed by a group of physicians
under the Texas Limited Liability Company Act (Article 1528n,
Vernon's Texas Civil Statutes).
(10) "Affiliate" means a person who directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with a specified person,
including any direct or indirect parent or subsidiary.
(11) "Claimant" means a person, including a decedent's
estate, seeking or who has sought recovery of damages in a health
care liability claim. All persons claiming to have sustained
damages as the result of the bodily injury or death of a single
person are considered a single claimant.
(12) "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of the person, whether through ownership of
equity or securities, by contract, or otherwise.
(13) "Economic damages" means compensatory damages
for any pecuniary loss or damage. The term does not include
noneconomic damages.
(14) "Emergency medical care" means bona fide
emergency services provided after the sudden onset of a medical or
traumatic condition manifesting itself by acute symptoms of
sufficient severity, including severe pain, such that the absence
of immediate medical attention could reasonably be expected to
result in:
(A) placing the patient's health in serious
jeopardy;
(B) serious impairment to bodily functions; or
(C) serious dysfunction of any bodily organ or
part.
(15) "Emergency medical services provider" means a
licensed public or private provider to which Chapter 773, Health
and Safety Code, applies.
(16) "Home and community support services agency" means
a licensed public or provider agency to which Chapter 142, Health
and Safety Code, applies.
(17) "Intermediate care facility for the mentally
retarded" means a licensed public or private institution to which
Chapter 252, Health and Safety Code, applies.
(18) "Noneconomic damages" means any loss or damage,
however characterized, for past, present, and future physical pain
and suffering, mental anguish and suffering, loss of consortium,
loss of companionship and society, disfigurement, physical
impairment, and any other nonpecuniary loss or damage or element of
loss or damage.
(19) "Nursing home" means a licensed public or private
institution to which Chapter 242, Health and Safety Code, applies.
(20) "Professional or administrative services" means
those duties or services that a physician or health care provider is
required to provide as a condition of maintaining the physician's
or health care provider's license, accreditation status, or
certification to participate in state or federal health care
programs.
(21) "Hospice" means a hospice facility or activity to
which Chapter 142, Health and Safety Code, applies.
(22) "Hospital system" means a system of local
nonprofit hospitals and nonprofit entities created by the hospital
or its parent entity to further the charitable purposes of the
hospital under the common governance of a single corporate parent
that are located within a radius of not more than 125 linear miles
from the corporate parent.
SECTION 2. Subchapter A, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Section 1.04 to read as follows:
Sec. 1.04. CONFLICT WITH OTHER LAW AND RULES OF CIVIL
PROCEDURE. (a) In the event of a conflict between this Act and
another law, including a rule of procedure or evidence or court
rule, this Act controls to the extent of the conflict.
(b) Notwithstanding Section 22.004, Government Code, and
except as otherwise provided by this Act, the supreme court may not
amend or adopt rules in conflict with this Act.
(c) The district courts and statutory county courts in a
county may not adopt local rules in conflict with this Act.
SECTION 3. Section 4.01, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Subsection (f) to read as follows:
(f) Notwithstanding the provisions of Rule 202, Texas Rules
of Civil Procedure, a deposition may not be taken of a physician or
health care provider for the purpose of investigating a health care
liability claim before the filing of a lawsuit.
SECTION 4. The heading to Subchapter G, Medical Liability
and Insurance Improvement Act of Texas (Article 4590i, Vernon's
Texas Civil Statutes), is amended to read as follows:
SUBCHAPTER G. EVIDENTIARY MATTERS [RES IPSA LOQUITUR]
SECTION 5. Subchapter G, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Sections 7.03 and 7.04 to read as
follows:
Sec. 7.03. FEDERAL OR STATE INCOME TAXES. (a)
Notwithstanding any other law, in a health care liability claim, if
any claimant seeks recovery for loss of earnings, loss of earning
capacity, loss of contributions of a pecuniary value, or loss of
inheritance, evidence to prove the loss must be presented in the
form of a net after-tax loss that either was or should have been
paid by the injured party or decedent through which the alleged loss
has occured.
(b) In a health care liability claim, if any claimant seeks
recovery for loss of earnings, loss of earning capacity, loss of
contributions of a pecuniary value, or loss of inheritance, the
court shall instruct the jury whether any recovery for compensatory
damages sought by the claimant is subject to federal or state income
taxes.
Sec. 7.04. JURY INSTRUCTIONS IN CASES INVOLVING EMERGENCY
MEDICAL CARE. (a) In a health care liability claim that involves a
claim of negligence arising from the provision of emergency medical
care, the court shall instruct the jury to consider, together with
all other relevant matters:
(1) whether the person providing care did not have the
patient's medical history or was unable to obtain a full medical
history, including the knowledge of preexisting medical
conditions, allergies, and medications;
(2) the lack of a preexisting physician-patient
relationship or health care provider-patient relationship;
(3) the circumstances constituting the emergency; and
(4) the circumstances surrounding the delivery of the
emergency medical care.
(b) The provisions of Subsection (a) of this section do not
apply to medical care or treatment:
(1) that occurs after the patient is stabilized and is
capable of receiving medical treatment as a nonemergency patient;
or
(2) that is unrelated to the original medical
emergency.
SECTION 6. The heading to Subchapter I, Medical Liability
and Insurance Improvement Act of Texas (Article 4590i, Vernon's
Texas Civil Statutes), is amended to read as follows:
SUBCHAPTER I. PAYMENT OF MEDICAL OR HEALTH CARE EXPENSES
[ADVANCE PAYMENTS]
SECTION 7. Subchapter I, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Section 9.01 to read as follows:
Sec. 9.01. RECOVERY OF MEDICAL OR HEALTH CARE EXPENSES.
Recovery of medical or health care expenses in a health care
liability claim shall be limited to the amount actually paid or
incurred by or on behalf of the claimant.
SECTION 8. Section 10.01, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended to read as follows:
Sec. 10.01. LIMITATION ON HEALTH CARE LIABILITY CLAIMS.
(a) Notwithstanding any other law and subject to Subsection (b)
of this section, no health care liability claim may be commenced
unless the action is filed within two years from the occurrence of
the breach or tort or from the date the medical or health care
treatment that is the subject of the claim or the hospitalization
for which the claim is made is completed; provided that, minors
under the age of 12 years shall have until their 14th birthday in
which to file, or have filed on their behalf, the claim. Except as
herein provided, this subchapter applies to all persons regardless
of minority or other legal disability.
(b) A claimant must bring a health care liability claim not
later than 10 years after the date of the act or omission that gives
rise to the claim. This subsection is intended as a statute of
repose so that all claims must be brought within 10 years or they
are time barred.
SECTION 9. Section 11.02, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Subsections (e) and (f) to read as
follows:
(e) The limitation on health care liability claims
contained in Subsection (a) of this section includes punitive
damages.
(f) The limitation on health care liability claims
contained in Subsection (a) of this section shall be applied on a
per-claimant basis.
SECTION 10. Section 11.03, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended to read as follows:
Sec. 11.03. LIMITATION ON NONECONOMIC DAMAGES [ALTERNATIVE
PARTIAL LIMIT ON CIVIL LIABILITY]. [In the event that Section
11.02(a) of this subchapter is stricken from this subchapter or is
otherwise invalidated by a method other than through legislative
means, the following shall become effective:]
In an action on a health care liability claim where final
judgment is rendered against a physician or health care provider,
the limit of civil liability for noneconomic damages of the
physician or health care provider shall be limited to an amount not
to exceed $250,000 for each claimant, regardless of the number of
defendant physicians or health care providers against whom the
claim is asserted or the number of separate causes of action on
which the claim is based [of the physician or health care provider
for all past and future noneconomic losses recoverable by or on
behalf of any injured person and/or the estate of such person,
including without limitation as applicable past and future physical
pain and suffering, mental anguish and suffering, consortium,
disfigurement, and any other nonpecuniary damage, shall be limited
to an amount not to exceed $150,000].
SECTION 11. Subchapter K, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Section 11.031 to read as follows:
Sec. 11.031. ALTERNATIVE LIMITATION ON NONECONOMIC DAMAGES.
(a) In the event that Section 11.03 of this subchapter is stricken
from this subchapter or is otherwise to any extent invalidated by a
method other than through legislative means, the following, subject
to the provisions of this section, shall become effective:
In an action on a health care liability claim where final
judgment is rendered against a physician or health care provider,
the limit of civil liability for all damages and losses, other than
economic damages, shall be limited to an amount not to exceed
$250,000 for each claimant, regardless of the number of defendant
physicians or health care providers against whom the claim is
asserted or the number of separate causes of action on which the
claim is based.
(b) Effective before September 1, 2005, Subsection (a) of
this section applies to any physician or health care provider that
provides evidence of financial responsibility in the following
amounts in effect for any act or omission to which this subchapter
applies:
(1) at least $100,000 for each health care liability
claim and at least $300,000 in aggregate for all health care
liability claims occurring in an insurance policy year, calendar
year, or fiscal year for a physician participating in an approved
residency program;
(2) at least $200,000 for each health care liability
claim and at least $600,000 in aggregate for all health care
liability claims occurring in an insurance policy year, calendar
year, or fiscal year for a physician or health care provider, other
than a hospital; and
(3) at least $500,000 for each health care liability
claim and at least $1.5 million in aggregate for all health care
liability claims occurring in an insurance policy year, calendar
year, or fiscal year for a hospital.
(c) Effective September 1, 2005, Subsection (a) of this
section applies to any physician or health care provider that
provides evidence of financial responsibility in the following
amounts in effect for any act or omission to which this subchapter
applies:
(1) at least $100,000 for each health care liability
claim and at least $300,000 in aggregate for all health care
liability claims occurring in an insurance policy year, calendar
year, or fiscal year for a physician participating in an approved
residency program;
(2) at least $300,000 for each health care liability
claim and at least $900,000 in aggregate for all health care
liability claims occurring in an insurance policy year, calendar
year, or fiscal year for a physician or health care provider, other
than a hospital; and
(3) at least $750,000 for each health care liability
claim and at least $2.25 million in aggregate for all health care
liability claims occurring in an insurance policy year, calendar
year, or fiscal year for a hospital.
(d) Effective September 1, 2007, Subsection (a) of this
section applies to any physician or health care provider that
provides evidence of financial responsibility in the following
amounts in effect for any act or omission to which this subchapter
applies:
(1) at least $100,000 for each health care liability
claim and at least $300,000 in aggregate for all health care
liability claims occurring in an insurance policy year, calendar
year, or fiscal year for a physician participating in an approved
residency program;
(2) at least $500,000 for each health care liability
claim and at least $1 million in aggregate for all health care
liability claims occurring in an insurance policy year, calendar
year, or fiscal year for a physician or health care provider, other
than a hospital; and
(3) at least $1 million for each health care liability
claim and at least $3 million in aggregate for all health care
liability claims occurring in an insurance policy year, calendar
year, or fiscal year for a hospital.
(e) Evidence of financial responsibility may be established
at the time of judgment by providing proof of:
(1) the purchase of a contract of insurance or other
plan of insurance authorized by this state;
(2) the purchase of coverage from a trust organized
and operating under Article 21.49-4, Insurance Code;
(3) the purchase of coverage or another plan of
insurance provided by or through a risk retention group or
purchasing group authorized under applicable laws of this state or
under the Product Liability Risk Retention Act of 1981 (15 U.S.C.
Section 3901 et seq.), as amended, or the Liability Risk Retention
Act of 1986 (15 U.S.C. Section 3901 et seq.), as amended, or any
other contract or arrangement for transferring and distributing
risk relating to legal liability for damages, including cost or
defense, legal costs, fees, and other claims expenses; or
(4) the maintenance of financial reserves in or an
irrevocable letter of credit from a federally insured financial
institution that has its main office or a branch office in this
state.
SECTION 12. Section 11.04, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended to read as follows:
Sec. 11.04. ADJUSTMENT OF LIABILITY LIMIT [LIMITS]. When
there is an increase or decrease in the consumer price index with
respect to the amount of that index on the effective date of this
subchapter, [each of] the liability limit [limits] prescribed in
Section 11.02(a) [or in Section 11.03] of this subchapter[, as
applicable,] shall be increased or decreased, as applicable, by a
sum equal to the amount of such limit multiplied by the percentage
increase or decrease in the consumer price index between the
effective date of this subchapter and the time at which damages
subject to such limit [limits] are awarded by final judgment or
settlement.
SECTION 13. Subchapter L, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Section 12.02 to read as follows:
Sec. 12.02. STANDARD OF PROOF IN CASES INVOLVING EMERGENCY
MEDICAL CARE. In a suit involving a health care liability claim
against a physician or health care provider for injury to or death
of a patient arising out of the provision of emergency medical care,
the person bringing the suit may prove that the treatment or lack of
treatment by the physician or health care provider departed from
accepted standards of medical care or health care only if the person
shows by clear and convincing evidence that the physician or health
care provider did not use the degree of care and skill that is
reasonably expected of an ordinarily prudent physician or health
care provider in the same or similar circumstances.
SECTION 14. The heading to Section 13.01, Medical Liability
and Insurance Improvement Act of Texas (Article 4590i, Vernon's
Texas Civil Statutes), is amended to read as follows:
Sec. 13.01. [COST BOND, DEPOSIT, AND] EXPERT REPORT.
SECTION 15. Section 13.01, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by amending Subsections (a), (b), (i), (j),
(k), and (l) and adding Subsections (s) and (t) to read as follows:
(a) In a health care liability claim, a claimant shall, not
later than the 180th [90th] day after the date the claim is filed,
serve on each party or the party's attorney one or more expert
reports, with a curriculum vitae of each expert listed in the[:
[(1) file a separate cost bond in the amount of $5,000
for each physician or health care provider named by the claimant in
the action;
[(2) place cash in an escrow account in the amount of
$5,000 for each physician or health care provider named in the
action; or
[(3) file an expert] report for each physician or
health care provider against whom a liability claim is asserted
[with respect to whom a cost bond has not been filed and cash in lieu
of the bond has not been deposited under Subdivision (1) or (2) of
this subsection].
(b) If, as to a defendant physician or health care provider,
an expert report[, cost bond, or cash in lieu of bond] has not been
served [filed or deposited] within the period specified by
Subsection (a) [or (h)] of this section, the court, on the motion of
the affected physician or health care provider, shall enter an
order that:
(1) awards to the affected physician or health care
provider reasonable attorney's fees and costs of court incurred by
the physician or health care provider [requires the filing of a
$7,500 cost bond with respect to the physician or health care
provider not later than the 21st day after the date of the order];
and
(2) dismisses the claim [provides that if the claimant
fails to comply with the order, the action shall be dismissed for
want of prosecution] with respect to the physician or health care
provider, with prejudice to the refiling of the claim [subject to
reinstatement in accordance with the applicable rules of civil
procedure and Subsection (c) of this section].
(i) Notwithstanding any other provision of this section, a
claimant may satisfy any requirement of this section for serving
[filing] an expert report by serving [filing] reports of separate
experts regarding different physicians or health care providers or
regarding different issues arising from the conduct of a physician
or health care provider, such as issues of liability and causation.
Nothing in this section shall be construed to mean that a single
expert must address all liability and causation issues with respect
to all physicians or health care providers or with respect to both
liability and causation issues for a physician or health care
provider.
(j) Nothing in this section shall be construed to require
the serving [filing] of an expert report regarding any issue other
than an issue relating to liability or causation.
(k) An [Notwithstanding any other law, an] expert report
served [filed] under this section:
(1) is not admissible in evidence by any party [a
defendant];
(2) shall not be used in a deposition, trial, or other
proceeding; and
(3) shall not be referred to by any party [a defendant]
during the course of the action for any purpose.
(l) A court shall grant a motion challenging the adequacy of
an expert report only if it appears to the court, after hearing,
that the report does not represent an objective [a] good faith
effort to comply with the definition of an expert report in
Subsection (r)(6) of this section.
(s) Until a claimant has served the expert report and
curriculum vitae, as required by Subsection (a) of this section,
all discovery in a health care liability claim is stayed except for
the acquisition of the patient's medical records, medical or
psychological studies, or tissue samples through:
(1) written discovery as defined in Rule 192.7, Texas
Rules of Civil Procedure;
(2) depositions on written questions under Rule 200,
Texas Rules of Civil Procedure; and
(3) discovery from nonparties under Rule 205, Texas
Rules of Civil Procedure.
(t) If an expert report is used by the claimant in the course
of the action for any purpose other than to meet the service
requirement of Subsection (a) of this section, the restrictions
imposed by Subsection (k) of this section on use of the expert
report by any party are waived.
SECTION 16. Section 13.01(r)(5), Medical Liability and
Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
Civil Statutes), is amended to read as follows:
(5) "Expert" means:
(A) with respect to a person giving opinion
testimony regarding whether a physician departed from accepted
standards of medical care, an expert qualified to testify under the
requirements of Section 14.01(a) of this Act; [or]
(B) with respect to a person giving opinion
testimony regarding whether [about] a [nonphysician] health care
provider departed from accepted standards of health care, an expert
qualified to testify under the requirements of Section 14.02 of
this Act;
(C) with respect to a person giving opinion
testimony about the causal relationship between the injury, harm,
or damages claimed and the alleged departure from the applicable
standard of care in any health care liability claim, a physician who
is otherwise qualified to render opinions on that causal
relationship under the Texas Rules of Evidence;
(D) with respect to a person giving opinion
testimony about the causal relationship between the injury, harm,
or damages claimed and the alleged departure from the applicable
standard of care for a dentist, a dentist who is otherwise qualified
to render opinions on that causal relationship under the Texas
Rules of Evidence; or
(E) with respect to a person giving opinion
testimony about the causal relationship between the injury, harm,
or damages claimed and the alleged departure from the applicable
standard of care for a podiatrist, a podiatrist who is otherwise
qualified to render opinions on that causal relationship under the
Texas Rules of Evidence [who has knowledge of accepted standards of
care for the diagnosis, care, or treatment of the illness, injury,
or condition involved in the claim].
SECTION 17. Sections 14.01(e) and (g), Medical Liability
and Insurance Improvement Act of Texas (Article 4590i, Vernon's
Texas Civil Statutes), are amended to read as follows:
(e) A pretrial objection to the qualifications of a witness
under this section must be made not later than the later of the 21st
day after the date the objecting party receives a copy of the
witness's curriculum vitae or the 21st day after the date of the
witness's deposition. If circumstances arise after the date on
which the objection must be made that could not have been reasonably
anticipated by a party before that date and that the party believes
in good faith provide a basis for an objection to a witness's
qualifications, and if an objection was not made previously, this
subsection does not prevent the party from making an objection as
soon as practicable under the circumstances. The court shall
conduct a hearing to determine whether the witness is qualified as
soon as practicable after the filing of an objection and, if
possible, before trial. If the objecting party is unable to object
in time for the hearing to be conducted before the trial, the
hearing shall be conducted outside the presence of the jury. This
subsection does not prevent a party from examining or
cross-examining a witness at trial about the witness's
qualifications.
(g) In this subchapter [section], "physician" means a
person who is:
(1) licensed to practice medicine in one or more
states in the United States; or
(2) a graduate of a medical school accredited by the
Liaison Committee on Medical Education or the American Osteopathic
Association only if testifying as a defendant and that testimony
relates to that defendant's standard of care, the alleged departure
from that standard of care, or the causal relationship between the
alleged departure from that standard of care and the injury, harm,
or damages claimed.
SECTION 18. Subchapter N, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Sections 14.02 and 14.03 to read as
follows:
Sec. 14.02. QUALIFICATIONS OF EXPERT WITNESS IN SUIT
AGAINST HEALTH CARE PROVIDER. (a) For purposes of this section,
"practicing health care" includes:
(1) training health care providers in the same field
as the defendant health care provider at an accredited educational
institution; or
(2) serving as a consulting health care provider and
being licensed, certified, or registered in the same field as the
defendant health care provider.
(b) In a suit involving a health care liability claim
against a health care provider, a person may qualify as an expert
witness on the issue of whether the health care provider departed
from accepted standards of care only if the person:
(1) is practicing health care in the same field of
practice as the defendant health care provider at the time the
testimony is given or was practicing that type of health care at the
time the claim arose;
(2) has knowledge of accepted standards of care for
health care providers for the diagnosis, care, or treatment of the
illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or
experience to offer an expert opinion regarding those accepted
standards of health care.
(c) In determining whether a witness is qualified on the
basis of training or experience, the court shall consider whether,
at the time the claim arose or at the time the testimony is given,
the witness:
(1) is certified by a Texas licensing agency or a
national professional certifying agency, or has other substantial
training or experience, in the area of health care relevant to the
claim; and
(2) is actively practicing health care in rendering
health care services relevant to the claim.
(d) The court shall apply the criteria specified in
Subsections (a), (b), and (c) of this section in determining
whether an expert is qualified to offer expert testimony on the
issue of whether the defendant health care provider departed from
accepted standards of health care but may depart from those
criteria if, under the circumstances, the court determines that
there is good reason to admit the expert's testimony. The court
shall state on the record the reason for admitting the testimony if
the court departs from the criteria.
(e) This section does not prevent a health care provider who
is a defendant, or an employee of the defendant health care
provider, from qualifying as an expert.
(f) A pretrial objection to the qualifications of a witness
under this section must be made not later than the later of the 21st
day after the date the objecting party receives a copy of the
witness's curriculum vitae or the 21st day after the date of the
witness's deposition. If circumstances arise after the date on
which the objection must be made that could not have been reasonably
anticipated by a party before that date and that the party believes
in good faith provide a basis for an objection to a witness's
qualifications, and if an objection was not made previously, this
subsection does not prevent the party from making an objection as
soon as practicable under the circumstances. The court shall
conduct a hearing to determine whether the witness is qualified as
soon as practicable after the filing of an objection and, if
possible, before trial. If the objecting party is unable to object
in time for the hearing to be conducted before the trial, the
hearing shall be conducted outside the presence of the jury. This
subsection does not prevent a party from examining or
cross-examining a witness at trial about the witness's
qualifications.
Sec. 14.03. QUALIFICATIONS OF EXPERT WITNESS ON CAUSATION
IN HEALTH CARE LIABILITY CLAIM. (a) Except as provided by
Subsections (b) and (c) of this section, in a suit involving a
health care liability claim against a physician or health care
provider, a person may qualify as an expert witness on the issue of
the causal relationship between the alleged departure from accepted
standards of care and the injury, harm, or damages claimed only if
the person is a physician and is otherwise qualified to render
opinions on that causal relationship under the Texas Rules of
Evidence.
(b) In a suit involving a health care liability claim
against a dentist, a person may qualify as an expert witness on the
issue of the causal relationship between the alleged departure from
accepted standards of care and the injury, harm, or damages claimed
if the person is a dentist and is otherwise qualified to render
opinions on that causal relationship under the Texas Rules of
Evidence.
(c) In a suit involving a health care liability claim
against a podiatrist, a person may qualify as an expert witness on
the issue of the causal relationship between the alleged departure
from accepted standards of care and the injury, harm, or damages
claimed if the person is a podiatrist and is otherwise qualified to
render opinions on that causal relationship under the Texas Rules
of Evidence.
(d) A pretrial objection to the qualifications of a witness
under this section must be made not later than the later of the 21st
day after the date the objecting party receives a copy of the
witness's curriculum vitae or the 21st day after the date of the
witness's deposition. If circumstances arise after the date on
which the objection must be made that could not have been reasonably
anticipated by a party before that date and that the party believes
in good faith provide a basis for an objection to a witness's
qualifications, and if an objection was not made previously, this
subsection does not prevent the party from making an objection as
soon as practicable under the circumstances. The court shall
conduct a hearing to determine whether the witness is qualified as
soon as practicable after the filing of an objection and, if
possible, before trial. If the objecting party is unable to object
in time for the hearing to be conducted before the trial, the
hearing shall be conducted outside the presence of the jury. This
subsection does not prevent a party from examining or
cross-examining a witness at trial about the witness's
qualifications.
SECTION 19. Section 16.01, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended to read as follows:
Sec. 16.01. APPLICATION OF OTHER LAW. Notwithstanding
Chapter 304, Finance Code [Articles 1E.101, 1E.102, and
1E.104-1E.108, Title 79, Revised Statutes], prejudgment interest
in a judgment on a health care liability claim shall be awarded in
accordance with this subchapter.
SECTION 20. Sections 16.02(b) and (c), Medical Liability
and Insurance Improvement Act of Texas (Article 4590i, Vernon's
Texas Civil Statutes), are amended to read as follows:
(b) Subject to Subchapter K of this Act [In a health care
liability claim that is not settled within the period specified by
Subsection (a) of this section], the judgment must include
prejudgment interest on past damages awarded in the judgment [found
by the trier of fact], but shall not include prejudgment interest on
future damages awarded in the judgment [found by the trier of fact].
(c) Prejudgment interest allowed under this subchapter
shall be computed in accordance with Section 304.003(c)(1), Finance
Code [Article 1E.103, Title 79, Revised Statutes], for a period
beginning on the date of injury and ending on the date before the
date the judgment is signed.
SECTION 21. The Medical Liability and Insurance Improvement
Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) is
amended by adding Subchapters Q, R, S, and T to read as follows:
SUBCHAPTER Q. COLLATERAL SOURCE BENEFITS
Sec. 17.01. DEFINITION. In this subchapter, "collateral
source benefit" means a benefit paid or payable to or on behalf of a
claimant under:
(1) the Social Security Act (42 U.S.C. Section 301 et
seq.), and its subsequent amendments;
(2) a state or federal income replacement, disability,
workers' compensation, or other law that provides partial or full
income replacement; or
(3) any insurance policy, other than a life insurance
policy, including:
(A) an accident, health, or sickness insurance
policy; and
(B) a disability insurance policy.
Sec. 17.02. ADMISSIBILITY OF EVIDENCE OF COLLATERAL SOURCE
BENEFITS. A defendant physician or health care provider may
introduce evidence in a health care liability claim of any amount
payable to the claimant as a collateral benefit. If a defendant
physician or health care provider introduces evidence of a
collateral source benefit, the claimant may introduce evidence of
any amount the claimant has paid to secure the right to the benefit.
Sec. 17.03. MAINTENANCE OF COVERAGE DURING
CLAIM. (a) During the pendency of a health care liability claim,
if the claimant has a policy of insurance that provides health
benefits or income disability coverage and the claimant is
unwilling or unable to pay the costs of renewing or continuing that
policy of insurance in force, the defendant physician or health
care provider may tender to the claimant the cost of maintaining the
insurance coverage.
(b) On receipt of the tender, the claimant shall continue
the policy in force.
Sec. 17.04. SUBROGATION. The payer of collateral benefits
introduced under this subchapter may not recover any amount against
the claimant and is not subrogated to any rights or claims of the
claimant, unless authorized by a federal law.
SUBCHAPTER R. PAYMENT FOR FUTURE LOSSES
Sec. 18.01. DEFINITIONS. In this subchapter:
(1) "Future damages" means damages that are incurred
after the date of judgment for:
(A) medical, health care, or custodial care
services;
(B) physical pain and mental anguish,
disfigurement, or physical impairment;
(C) loss of consortium, companionship, or
society; or
(D) loss of earnings.
(2) "Future loss of earnings" means the following
losses incurred after the date of the judgment:
(A) loss of income, wages, or earning capacity
and other pecuniary losses; and
(B) loss of inheritance.
(3) "Periodic payments" means the payment of money or
its equivalent to the recipient of future damages at defined
intervals.
Sec. 18.02. SCOPE OF SUBCHAPTER. This subchapter applies
only to an action on a health care liability claim against a
physician or healthcare provider in which the present value of the
award of future damages, as determined by the court, equals or
exceeds $100,000.
Sec. 18.03. COURT ORDER FOR PERIODIC PAYMENTS. (a) At the
request of a defendant physician or health care provider or
claimant, the court shall order that future damages awarded in a
health care liability claim be paid in whole or in part in periodic
payments rather than by a lump-sum payment.
(b) The court shall make a specific finding of the dollar
amount of periodic payments that will compensate the claimant for
the future damages.
(c) The court shall specify in its judgment ordering the
payment of future damages by periodic payments the:
(1) recipient of the payments;
(2) dollar amount of the payments;
(3) interval between payments; and
(4) number of payments or the period of time over which
payments must be made.
Sec. 18.04. RELEASE. The entry of an order for the payment
of future damages by periodic payments constitutes a release of the
health care liability claim filed by the claimant.
Sec. 18.05. FINANCIAL RESPONSIBILITY. (a) As a condition
to authorizing periodic payments of future damages, the court shall
require a defendant who is not adequately insured to provide
evidence of financial responsibility in an amount adequate to
assure full payment of damages awarded by the judgment.
(b) The judgment must provide for payments to be funded by:
(1) an annuity contract issued by a company licensed
to do business as an insurance company;
(2) an obligation of the United States;
(3) applicable and collectible liability insurance
from one or more qualified insurers; or
(4) any other satisfactory form of funding approved by
the court.
(c) On termination of periodic payments of future damages,
the court shall order the return of the security, or as much as
remains, to the defendant.
Sec. 18.06. DEATH OF RECIPIENT. (a) On the death of the
recipient, money damages awarded for loss of future earnings
continue to be paid to the estate of the recipient of the award
without reduction.
(b) Periodic payments, other than future loss of earnings,
terminate on the death of the recipient.
(c) If the recipient of periodic payments dies before all
payments required by the judgment are paid, the court may modify the
judgment to award and apportion the unpaid damages for future loss
of earnings in an appropriate manner.
(d) Following the satisfaction or termination of any
obligations specified in the judgment for periodic payments, any
obligation of the defendant physician or health care provider to
make further payments ends and any security given reverts to the
defendant.
Sec. 18.07. AWARD OF ATTORNEY'S FEES. For purposes of
computing the award of attorney's fees when the claimant is awarded
a recovery that will be paid in periodic payments, the court shall:
(1) place a total value on the payments based on the
claimant's projected life expectancy; and
(2) reduce the amount in Subdivision (1) to present
value.
SUBCHAPTER S. ATTORNEY'S FEES
Sec. 19.01. DEFINITION. In this subchapter, "recovered"
means the net sum recovered after deducting any disbursements or
costs incurred in connection with prosecution or settlement of the
claim. Costs of medical or health care services incurred by the
claimant and the attorney's office overhead costs or charges are
not deductible disbursements or costs.
Sec. 19.02. APPLICABILITY. The limitations in this
subchapter apply without regard to whether:
(1) the recovery is by settlement, arbitration, or
judgment; or
(2) the person for whom the recovery is sought is an
adult, a minor, or an incapacitated person.
Sec. 19.03. PERIODIC PAYMENTS. If periodic payments are
recovered by the claimant, the court shall place a total value on
these payments based on the claimant's projected life expectancy
and then reduce this amount to present value for purposes of
computing the award of attorney's fees.
Sec. 19.04. LIMITATION ON ATTORNEY CONTINGENCY FEE
AGREEMENTS. (a) An attorney may not contract for or collect a
contingency fee for representing any person seeking damages in
connection with a health care liability claim in excess of 33-1/3
percent of the amount recovered.
(b) This section has no effect if Section 11.03 of this Act
is stricken from this Act or is otherwise to any extent invalidated
by a method other than through legislative means.
Sec. 19.05. ALTERNATIVE LIMIT ON ATTORNEY CONTINGENCY
FEES. (a) If Section 11.03 of this Act is stricken from this Act
or is otherwise to any extent invalidated by a method other than
through legislative means, this section is effective.
(b) An attorney may not contract for or collect a
contingency fee for representing any person seeking damages in
connection with a health care liability claim that exceeds the
following limits:
(1) 40 percent of the first $50,000 recovered;
(2) 33.3 percent of the next $50,000 recovered;
(3) 25 percent of the next $500,000 recovered; and
(4) 15 percent of any additional amount recovered.
SUBCHAPTER T. DECLARATORY JUDGMENTS; INJUNCTIONS; APPEALS
Sec. 20.01. APPLICABILITY. This subchapter applies only
to an amendment to this Act that is effective on or after January 1,
2003.
Sec. 20.02. DECLARATORY JUDGMENT. The constitutionality
and other validity under the state or federal constitution of all or
any part of an amendment to this Act may be determined in an action
for declaratory judgment in a district court in Travis County under
Chapter 37, Civil Practice and Remedies Code, if it is alleged that
the amendment or a part of the amendment affects the rights, status,
or legal relation of a party in a civil action with respect to any
other party in the civil action.
Sec. 20.03. ACCELERATED APPEAL. (a) An appeal of a
declaratory judgment or order, however characterized, of a district
court, including an appeal of the judgment of an appellate court,
holding or otherwise determining, under Section 20.02 of this
subchapter, that all or any part of an amendment to this Act is
constitutional or unconstitutional, or otherwise valid or invalid,
under the state or federal constitution is an accelerated appeal.
(b) If the judgment or order is interlocutory, an
interlocutory appeal may be taken from the judgment or order and is
an accelerated appeal.
Sec. 20.04. INJUNCTIONS. A district court in Travis County
may grant or deny a temporary or otherwise interlocutory injunction
or a permanent injunction on the grounds of the constitutionality
or unconstitutionality, or other validity or invalidity, under the
state or federal constitution of all or any part of an amendment to
this Act.
Sec. 20.05. DIRECT APPEAL. (a) There is a direct appeal
to the supreme court from an order, however characterized, of a
trial court granting or denying a temporary or otherwise
interlocutory injunction or a permanent injunction on the grounds
of the constitutionality or unconstitutionality, or other validity
or invalidity, under the state or federal constitution of all or any
part of any amendment to this Act.
(b) The direct appeal is an accelerated appeal.
(c) This section exercises the authority granted by Section
3-b, Article V, Texas Constitution.
Sec. 20.06. STANDING OF AN ASSOCIATION OR ALLIANCE TO
SUE. (a) An association or alliance has standing to sue for and
obtain the relief described by Subsection (b) of this section if it
is alleged that:
(1) the association or alliance has more than one
member who has standing to sue in the member's own right;
(2) the interests the association or alliance seeks to
protect are germane to a purpose of the association or alliance; and
(3) the claim asserted and declaratory relief
requested by the association or alliance relate to all or a
specified part of the amendment involved in the action being found
constitutional or unconstitutional on its face, or otherwise found
valid or invalid on its face, under the state or federal
constitution.
(b) The association or alliance has standing:
(1) to sue for and obtain a declaratory judgment under
Section 20.02 of this subchapter in an action filed and maintained
by the association or alliance;
(2) to appeal or otherwise be a party to an appeal
under Section 20.03 of this subchapter;
(3) to sue for and obtain an order under Section 20.04
of this subchapter granting or denying a temporary or otherwise
interlocutory injunction or a permanent injunction in an action
filed and maintained by the association or alliance; and
(4) to appeal or otherwise be a party to an appeal
under Section 20.05 of this subchapter.
Sec. 20.07. RULES FOR APPEALS. An appeal under this
subchapter, including an interlocutory, accelerated, or direct
appeal, is governed, as applicable, by the Texas Rules of Appellate
Procedure, including Rules 25.1(d)(6), 26.1(b), 28.1, 28.3,
32.1(g), 37.3(a)(1), 38.6(a) and (b), 40.1(b), and 49.4.
SECTION 22. Section 84.003, Civil Practice and Remedies
Code, is amended by adding Subdivision (6) to read as follows:
(6) "Person responsible for the patient" means:
(A) the patient's parent, managing conservator,
or guardian;
(B) the patient's grandparent;
(C) the patient's adult brother or sister;
(D) another adult who has actual care, control,
and possession of the patient and has written authorization to
consent for the patient from the parent, managing conservator, or
guardian of the patient;
(E) an educational institution in which the
patient is enrolled that has written authorization to consent for
the patient from the parent, managing conservator, or guardian of
the patient; or
(F) any other person with legal responsibility
for the care of the patient.
SECTION 23. Section 84.004(c), Civil Practice and Remedies
Code, is amended to read as follows:
(c) Except as provided by Subsection (d) and Section 84.007,
a volunteer health care provider [who is serving as a direct service
volunteer of a charitable organization] is immune from civil
liability for any act or omission resulting in death, damage, or
injury to a patient if:
(1) [the volunteer was acting in good faith and in the
course and scope of the volunteer's duties or functions within the
organization;
[(2)] the volunteer commits the act or omission in the
course of providing health care services to the patient;
(2) [(3)] the services provided are within the scope
of the license of the volunteer; and
(3) [(4)] before the volunteer provides health care
services, the patient or, if the patient is a minor or is otherwise
legally incompetent, the person responsible for the patient
[patient's parent, managing conservator, legal guardian, or other
person with legal responsibility for the care of] signs a written
statement that acknowledges:
(A) that the volunteer is providing care that is
not administered for or in expectation of compensation; and
(B) the limitations on the recovery of damages
from the volunteer in exchange for receiving the health care
services.
SECTION 24. Chapter 84, Civil Practice and Remedies Code,
is amended by adding Section 84.0065 to read as follows:
Sec. 84.0065. ORGANIZATION LIABILITY OF HOSPITALS. Except
as provided by Section 84.007, in any civil action brought against a
hospital or hospital system, or its employees, officers, directors,
or volunteers, for damages based on an act or omission by the
hospital or hospital system, or its employees, officers, directors,
or volunteers, the liability of the hospital or hospital system is
limited to money damages in a maximum amount of $500,000 for any act
or omission resulting in death, damage, or injury to a patient if
the patient or, if the patient is a minor or is otherwise legally
incompetent, the person responsible for the patient, signs a
written statement that acknowledges:
(1) that the hospital is providing care that is not
administered for or in expectation of compensation; and
(2) the limitations on the recovery of damages from
the hospital in exchange for receiving the health care services.
SECTION 25. Section 88.002, Civil Practice and Remedies
Code, is amended by adding Subsection (l) to read as follows:
(l) This chapter does not create liability on the part
of physicians or health care providers for medical care or health
care services performed or furnished or that should have been
performed or furnished for, to, or on behalf of a patient.
SECTION 26. Article 5.15-1, Insurance Code, is amended by
adding Section 11 to read as follows:
Sec. 11. VENDOR'S ENDORSEMENT. An insurer may not exclude
or otherwise limit coverage for physicians or health care providers
under a vendor's endorsement issued to a manufacturer, as that term
is defined by Section 82.001, Civil Practice and Remedies Code. A
physician or health care provider shall be considered a vendor for
purposes of coverage under a vendor's endorsement or a
manufacturer's general liability or products liability policy.
SECTION 27. The following provisions are repealed:
(1) Section 11.02(c), Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes);
(2) Sections 13.01(c), (d), (e), (f), (g), (h), (m),
(n), (o), and (r)(3), Medical Liability and Insurance Improvement
Act of Texas (Article 4590i, Vernon's Texas Civil Statutes);
(3) Section 16.02(a), Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes); and
(4) Section 242.0372, Health and Safety Code.
SECTION 28. The changes made by this article to the Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes) apply to a cause of action that
accrues on or after January 1, 2004. A cause of action that accrues
before January 1, 2004, is governed by the laws in effect
immediately before January 1, 2004, and that law is continued in
effect for that purpose.