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78R4776 DAK-F
By: Nixon H.B. No. 3
A BILL TO BE ENTITLED
AN ACT
relating to health care.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1.03, 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)-(14) to read as follows:
(3) "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 [as] a
registered nurse, hospital, dentist, podiatrist, pharmacist,
assisted living facility,or nursing home. The term includes [,
or] an officer, employee, independent contractor, or agent of a
health care provider or physician [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 for treatment,
lack of treatment, or other claimed departure from accepted
standards of medical care or health care, or safety or
administrative practice or procedure which proximately results in
injury to or death of the patient, whether the 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; or
(D) a nonprofit health corporation certified
under Section 162.001, Occupations Code.
(10) "Claimant" means a person 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.
(11) "Economic damages" means compensatory damages
for any pecuniary loss or damage. The term does not include
noneconomic damages.
(12) "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.
(13) "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.
(14) "Nursing home" means a licensed public or private
institution to which Chapter 242, Health and Safety Code, applies.
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 section 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. The Medical Liability and Insurance Improvement
Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) is
amended by adding Subchapter C to read as follows:
SUBCHAPTER C. SETTLEMENT OFFERS
Sec. 3.01. SETTLEMENT OFFERS; ACCEPTANCE. (a) At any time
before the 30th day before the commencement of a trial of a health
care liability claim, a defendant may serve on a plaintiff who is
asserting or entitled to assert a claim a settlement offer for a
stated consideration to be performed in accordance with the terms
of an unconditional full release and settlement agreement executed
by or on behalf of the plaintiff to whom the offer is made.
(b) The defendant shall prepare and serve the release and
settlement agreement with the offer of settlement.
(c) A plaintiff who receives an offer of settlement from a
defendant may accept the offer only if the plaintiff serves written
notice on the defendant that the offer is accepted not later than
the 10th day after the date the offer is received.
(d) If the plaintiff accepts the settlement offer, the
defendant shall pay the full amount of the settlement offer to the
plaintiff in exchange for the plaintiff's executed release not
later than the 10th day after the date the plaintiff served notice
on the defendant accepting the offer, unless the parties agree
otherwise.
(e) The plaintiff accepting the settlement offer shall, not
later than the seventh day after the date the plaintiff received
payment and delivered the executed release, file a dismissal with
prejudice.
Sec. 3.02. SETTLEMENT OFFERS; REJECTION. (a) A settlement
offer by a defendant that is not accepted by a plaintiff within the
time specified by Section 3.01 of this subchapter is considered
rejected by the plaintiff and withdrawn by the defendant.
(b) Evidence of the settlement offer is admissible only in a
hearing before the court to determine court costs, expenses, and
attorney's fees under this section.
(c) The court shall determine the amount of monetary damages
that were awarded against a defendant who has made a settlement
offer to a plaintiff who has rejected the offer. In determining the
amount, the court shall exclude any prejudgment or postjudgment
interest.
(d) If the amount of monetary damages determined under
Subsection (c) of this section is equal to or less than the amount
of any rejected offer of settlement by the plaintiff, the court
shall order an offset against a judgment entered against the
defendant up to the amount of the judgment:
(1) all court costs incurred after the date the offer
was rejected; and
(2) reasonable and necessary expenses and attorney's
fees incurred by the defendant after the date the defendant offered
the settlement that was rejected.
(e) The court shall conduct a hearing to determine the
amount to assess against the plaintiff under Subsection (d) of this
section.
Sec. 3.03. MULTIPLE SETTLEMENT OFFERS. The defendant may
make a settlement offer without regard to whether the plaintiff has
rejected a previous offer.
SECTION 4. 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 5. 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 6. 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) 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 of the past
payment of federal or state income taxes by the injured party or
decedent through which the alleged loss has occurred is admissible
before the trier of fact for the purpose of determining the
existence and amount, if any, of the alleged loss.
(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;
(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 7. 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 8. 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 9. 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, 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) Notwithstanding any other law regarding the disability
of persons under the age of 18 years to file and prosecute causes of
action, this section shall be construed as removing any disability
of minority that would otherwise prevent a minor from filing and
prosecuting a cause of action for a health care liability claim to
the extent that the other law is inconsistent with this section.
SECTION 10. Section 11.02, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by amending Subsection (a) and adding
Subsection (e) to read as follows:
(a) 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, including
punitive damages, of the physician or health care provider shall be
limited to an amount not to exceed $500,000 per claimant.
(e) 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.
SECTION 11. 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. ALTERNATIVE PARTIAL LIMIT ON CIVIL LIABILITY.
(a) In the event that Section 11.02(e) [11.02(a)] 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 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 $250,000 for each claimant [$150,000].
(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; or
(2) the maintenance of financial reserves in a
financial institution in this state that is chartered by the United
States or this state or an irrevocable letter of credit from a
financial institution in this state that is chartered by the United
States or 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 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 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 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 by 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, 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 Sections 11.01 and 11.02 of this article [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 [found by the trier of fact]
awarded in the judgment.
(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. (a) The court shall
provide that, if attorney's fees are awarded to a claimant in a
final judgment in which periodic payments are ordered, the
defendant shall pay:
(1) a percentage of the attorney's fees as past
damages, equal to the ratio of the past damages to the total present
value of both past and future damages; and
(2) a percentage of the attorney's fees as future
damages, equal to the ratio of the future damages to the total
present value of both past and future damages.
(b) The defendant shall pay attorney's fees that are to be
paid as future damages under Subsection (a)(1) of this section in
periodic installments of the same duration and intervals as the
periodic payments in accordance with an order entered by the court.
(c) A claimant who has agreed to compensate the claimant's
attorney on a contingency-fee basis shall pay the agreed percentage
calculated solely on the basis of that portion of the award not
subject to periodic payments. The claimant shall pay the remaining
unpaid portion of the attorney's fees in periodic installments of
the same duration and intervals as the periodic payments in
accordance with an order entered by the court.
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 upon 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 11.02(e) 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 11.02(e) 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 Act,
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 Act 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 Act;
(3) to sue for and obtain an order under Section 20.04
of this Act 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 Act.
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 51.014(a), Civil Practice and Remedies
Code, is amended to read as follows:
(a) A person may appeal from an interlocutory order of a
district court, county court at law, or county court that:
(1) appoints a receiver or trustee;
(2) overrules a motion to vacate an order that
appoints a receiver or trustee;
(3) certifies or refuses to certify a class in a suit
brought under Rule 42 of the Texas Rules of Civil Procedure;
(4) grants or refuses a temporary injunction or grants
or overrules a motion to dissolve a temporary injunction as
provided by Chapter 65;
(5) denies a motion for summary judgment that is based
on an assertion of immunity by an individual who is an officer or
employee of the state or a political subdivision of the state;
(6) denies a motion for summary judgment that is based
in whole or in part upon a claim against or defense by a member of
the electronic or print media, acting in such capacity, or a person
whose communication appears in or is published by the electronic or
print media, arising under the free speech or free press clause of
the First Amendment to the United States Constitution, or Article
1, Section 8, of the Texas Constitution, or Chapter 73;
(7) grants or denies the special appearance of a
defendant under Rule 120a, Texas Rules of Civil Procedure, except
in a suit brought under the Family Code; [or]
(8) grants or denies a plea to the jurisdiction by a
governmental unit as that term is defined in Section 101.001;
(9) denies all or part of the relief sought by a motion
under Section 13.01(b), Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes); or
(10) grants relief sought by a motion under Section
13.01(l), Medical Liability and Insurance Improvement Act of Texas
(Article 4590i, Vernon's Texas Civil Statutes).
SECTION 23. Section 82.001, Civil Practice and Remedies
Code, is amended by amending Subdivision (2) and adding Subdivision
(5) to read as follows:
(2) "Products liability action" means any action
against a manufacturer, [or] seller, or medical service provider
for recovery of damages arising out of personal injury, death, or
property damage allegedly caused by a defective product whether the
action is based in strict tort liability, strict products
liability, negligence, misrepresentation, breach of express or
implied warranty, or any other theory or combination of theories.
(5) "Medical service provider" means:
(A) a person, partnership, corporation, or
professional association composed of persons licensed or chartered
by this state to practice medicine in this state;
(B) a licensed public or private institution
under Chapters 241 or 577, Health and Safety Code; or
(C) a health care provider as defined by Section
1.03, Medical Liability and Insurance Improvement Act of Texas
(Article 4590i, Vernon's Texas Civil Statutes), that prescribes or
dispenses a drug or device, as those terms are defined in the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 321).
SECTION 24. Sections 82.002(a), (f), and (g), Civil
Practice and Remedies Code, are amended to read as follows:
(a) A manufacturer shall indemnify and hold harmless a
seller or medical service provider against loss arising out of a
products liability action, except for any loss caused by the
seller's or medical service provider's negligence, intentional
misconduct, or other act or omission, such as negligently modifying
or altering the product, for which the seller is independently
liable. A medical service provider shall not be considered
negligent for prescribing or providing a drug or device according
to the manufacturer's written or oral recommendations or according
to any therapeutic manner generally accepted in the community.
(f) A seller or medical service provider eligible for
indemnification under this section shall give reasonable notice to
the manufacturer of a product claimed in a petition or complaint to
be defective, unless the manufacturer has been served as a party or
otherwise has actual notice of the action.
(g) A seller or medical service provider is entitled to
recover from the manufacturer court costs and other reasonable
expenses, reasonable attorney fees, and any reasonable damages
incurred by the seller or medical service provider to enforce the
seller's or medical service provider's right to indemnification
under this section.
SECTION 25. 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 26. 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 the patient] 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 27. 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 28. 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 which should have been
performed or furnished for, to, or on behalf of a patient.
SECTION 29. 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 30. 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 31. (a) The Legislature of the State of Texas finds
that:
(1) the number of health care liability claims
(frequency) has increased since 1995 inordinately;
(2) the filing of legitimate health care liability
claims in Texas is a contributing factor affecting medical
professional liability rates;
(3) the amounts being paid out by insurers in
judgments and settlements (severity) have likewise increased
inordinately in the same short period of time;
(4) the effect of the above has caused a serious public
problem in availability of and affordability of adequate medical
professional liability insurance;
(5) the situation has created a medical malpractice
insurance crisis in Texas;
(6) this crisis has had a material adverse effect on
the delivery of medical and health care in Texas, including
significant reductions of availability of medical and health care
services to the people of Texas and a likelihood of further
reductions in the future;
(7) the crisis has had a substantial impact on the
physicians and hospitals of Texas and the cost to physicians and
hospitals for adequate medical malpractice insurance has
dramatically risen in price, with cost impact on patients and the
public;
(8) the direct cost of medical care to the patient and
public of Texas has materially increased due to the rising cost of
malpractice insurance protection for physicians and hospitals in
Texas;
(9) the crisis has increased the cost of medical care
both directly through fees and indirectly through additional
services provided for protection against future suits or claims,
and defensive medicine has resulted in increasing cost to patients,
private insurers, and Texas and has contributed to the general
inflation that has marked health care in recent years;
(10) satisfactory insurance coverage for adequate
amounts of insurance in this area is often not available at any
price;
(11) the combined effect of the defects in the
medical, insurance, and legal systems has caused a serious public
problem both with respect to the availability of coverage and to the
high rates being charged by insurers for medical professional
liability insurance to some physicians, health care providers, and
hospitals; and
(12) the adoption of certain modifications in the
medical, insurance, and legal systems, the total effect of which is
currently undetermined, may or may not have an effect on the rates
charged by insurers for medical professional liability insurance.
(b) Because of the conditions stated in Subsection (a) of
this section, it is the purpose of this Act to improve and modify
the system by which health care liability claims are determined in
order to:
(1) reduce excessive frequency and severity of health
care liability claims through reasonable improvements and
modifications in the Texas insurance, tort, and medical practice
systems;
(2) decrease the cost of those claims and ensure that
awards are rationally related to actual damages;
(3) do so in a manner that will not unduly restrict a
claimant's rights any more than necessary to deal with the crisis;
(4) make available to physicians, hospitals, and other
health care providers protection against potential liability
through the insurance mechanism at reasonably affordable rates;
(5) make affordable medical and health care more
accessible and available to the citizens of Texas;
(6) make certain modifications in the medical,
insurance, and legal systems in order to determine whether or not
there will be an effect on rates charged by insurers for medical
professional liability insurance; and
(7) make certain modifications to the liability laws
as they relate to health care liability claims only and with an
intention of the legislature to not extend or apply such
modifications of liability laws to any other area of the Texas legal
system or tort law.
SECTION 32. (a) The commissioner of insurance, with the
full cooperation of the Health Professions Council, the Health and
Human Services Commission, the Employees Retirement System of
Texas, and the Teacher Retirement System of Texas, shall conduct a
series of studies regarding the effect of this Act on the:
(1) price and availability of insurance for health
care liability claims;
(2) number and cost of health liability claims;
(3) price and availability of health insurance;
(4) cost savings, if any, to the state budget; and
(5) willingness of health care providers to provide
health care services.
(b) The commissioner of insurance may, at the
commissioner's discretion, require the state entities listed in
Subsection (a) of this section to enter into memoranda of
understanding in order to facilitate the preparation of the study.
(c) The commissioner of insurance may contract with an
outside consultant to assist with the study and to draft reports, as
necessary.
(d) Not later than January 1, 2004, the commissioner of
insurance shall begin collecting information necessary to conduct
the study required under this section.
(e) Not later than December 1, 2006, the commissioner of
insurance shall submit a report to the legislature regarding the
results of the study conducted under this section. The commissioner
of insurance shall submit subsequent reports to the legislature on
an annual basis.
SECTION 33. (a) This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2003.
(b) Except as provided by this section, the changes in law
made by this Act to the Medical Liability and Insurance Improvement
Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) apply
only to a cause of action that accrues on or after January 1, 2004.
Except as provided by this section, a cause of action that accrues
before January 1, 2004, is governed by the law in effect immediately
before the effective date of this Act, and that law is continued in
effect for that purpose.
(c) Subchapter S, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), as added by this Act, applies only to an attorney's fee
agreement or contract that is entered into on or after January 1,
2004. An attorney's fee agreement or contract entered into before
January 1, 2004, is governed by the law in effect immediately before
the effective date of this Act, and that law is continued in effect
for that purpose.
SECTION 34. (a) This section applies only if this Act takes
effect September 1, 2003.
(b) All changes in law made by this Act to the Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes), other than Subchapter S, added by
this Act, also apply to a health care liability claim that is
included in an action or suit filed on or after September 1, 2003,
and to that action or suit.
(c) If written notice of a health care liability claim is
given by certified mail, return receipt requested, in compliance
with Section 4.01(a), Medical Liability and Insurance Improvement
Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), on or
after June 1, 2003, and before September 1, 2003, the giving of that
notice constitutes, for purposes of this section, the filing, as of
the date of depositing that notice in the mail, of an action or suit
that includes that claim against each physician or health care
provider to whom that notice is given.
SECTION 35. (a) This section applies only if this Act takes
effect immediately.
(b) All changes in law made by this Act to the Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes), other than Subchapter S, added by
this Act, also apply to a health care liability claim that is
included in an action or suit filed on or after the 60th day after
the effective date of this Act, and to that action or suit.
(c) If written notice of a health care liability claim is
given by certified mail, return receipt requested, in compliance
with Section 4.01(a), Medical Liability and Insurance Improvement
Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), on or
after the effective date of this Act, and before the 60th day after
the effective date of this Act, the giving of that notice
constitutes, for purposes of this section, the filing, as of the
date of depositing that notice in the mail, of an action or suit
that includes that claim against each physician or health care
provider to whom that notice is given.