H.B. No. 4
AN ACT
relating to reform of certain procedures and remedies in civil
actions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CLASS ACTIONS
SECTION 1.01. Subtitle B, Title 2, Civil Practice and
Remedies Code, is amended by adding Chapter 26 to read as follows:
CHAPTER 26. CLASS ACTIONS
SUBCHAPTER A. SUPREME COURT RULES
Sec. 26.001. ADOPTION OF RULES BY SUPREME COURT. (a) The
supreme court shall adopt rules to provide for the fair and
efficient resolution of class actions.
(b) The supreme court shall adopt rules under this chapter
on or before December 31, 2003.
Sec. 26.002. MANDATORY GUIDELINES. Rules adopted under
Section 26.001 must comply with the mandatory guidelines
established by this chapter.
Sec. 26.003. ATTORNEY'S FEES. (a) If an award of
attorney's fees is available under applicable substantive law, the
rules adopted under this chapter must provide that the trial court
shall use the Lodestar method to calculate the amount of attorney's
fees to be awarded class counsel. The rules may give the trial
court discretion to increase or decrease the fee award calculated
by using the Lodestar method by no more than four times based on
specified factors.
(b) Rules adopted under this chapter must provide that in a
class action, if any portion of the benefits recovered for the class
are in the form of coupons or other noncash common benefits, the
attorney's fees awarded in the action must be in cash and noncash
amounts in the same proportion as the recovery for the class.
[Sections 26.004-26.050 reserved for expansion]
SUBCHAPTER B. CLASS ACTIONS INVOLVING JURISDICTION OF STATE AGENCY
Sec. 26.051. STATE AGENCY WITH EXCLUSIVE OR PRIMARY
JURISDICTION. (a) Before hearing or deciding a motion to certify a
class action, a trial court must hear and rule on all pending pleas
to the jurisdiction asserting that an agency of this state has
exclusive or primary jurisdiction of the action or a part of the
action, or asserting that a party has failed to exhaust
administrative remedies. The court's ruling must be reflected in a
written order.
(b) If a plea to the jurisdiction described by Subsection
(a) is denied and a class is subsequently certified, a person may,
as part of an appeal of the order certifying the class action,
obtain appellate review of the order denying the plea to the
jurisdiction.
(c) This section does not alter or abrogate a person's right
to appeal or pursue an original proceeding in an appellate court in
regard to a trial court's order granting or denying a plea to the
jurisdiction if the right exists under statutory or common law in
effect at the time review is sought.
SECTION 1.02. Section 22.225, Government Code, is amended
by amending Subsections (b) and (d) and adding Subsection (e) to
read as follows:
(b) Except as provided by Subsection (c) or (d), a judgment
of a court of appeals is conclusive on the law and facts, and a
petition for review [writ of error] is not allowed to [from] the
supreme court, in the following civil cases:
(1) a case appealed from a county court or from a
district court when, under the constitution, a county court would
have had original or appellate jurisdiction of the case, with the
exception of a probate matter or a case involving state revenue laws
or the validity or construction of a statute;
(2) a case of a contested election other than a
contested election for a state officer, with the exception of a case
where the validity of a statute is questioned by the decision;
(3) an appeal from an interlocutory order appointing a
receiver or trustee or from other interlocutory appeals that are
allowed by law;
(4) an appeal from an order or judgment in a suit in
which a temporary injunction has been granted or refused or when a
motion to dissolve has been granted or overruled; and
(5) all other cases except the cases where appellate
jurisdiction is given to the supreme court and is not made final in
the courts of appeals.
(d) A petition for review [writ of error] is allowed to
[from] the supreme court for an appeal from an interlocutory order
described by Section 51.014(a)(3) or (6) [51.014(6)], Civil
Practice and Remedies Code.
(e) For purposes of Subsection (c), one court holds
differently from another when there is inconsistency in their
respective decisions that should be clarified to remove unnecessary
uncertainty in the law and unfairness to litigants.
SECTION 1.03. Sections 51.014(a), (b), and (c), Civil
Practice and Remedies Code, are 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 I
[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 74.351(b), except that an appeal may not be taken from
an order granting an extension under Section 74.351; or
(10) grants relief sought by a motion under Section
74.351(l).
(b) An interlocutory appeal under Subsection (a), other
than an appeal under Subsection (a)(4), stays [shall have the
effect of staying] the commencement of a trial in the trial court
pending resolution of the appeal. An interlocutory appeal under
Subsection (a)(3), (5), or (8) also stays all other proceedings in
the trial court pending resolution of that appeal.
(c) A denial of a motion for summary judgment, special
appearance, or plea to the jurisdiction described by Subsection
(a)(5), (7), or (8) is not subject to the automatic stay [of the
commencement of trial] under Subsection (b) unless the motion,
special appearance, or plea to the jurisdiction is filed and
requested for submission or hearing before the trial court not
later than the later of:
(1) a date set by the trial court in a scheduling order
entered under the Texas Rules of Civil Procedure; or
(2) the 180th day after the date the defendant files:
(A) the original answer;
(B) the first other responsive pleading to the
plaintiff's petition; or
(C) if the plaintiff files an amended pleading
that alleges a new cause of action against the defendant and the
defendant is able to raise a defense to the new cause of action
under Subsection (a)(5), (7), or (8), the responsive pleading that
raises that defense.
SECTION 1.04. Section 22.001, Government Code, is amended
by adding Subsection (e) to read as follows:
(e) For purposes of Subsection (a)(2), one court holds
differently from another when there is inconsistency in their
respective decisions that should be clarified to remove unnecessary
uncertainty in the law and unfairness to litigants.
SECTION 1.05. (a) The changes in law made by Section 1.02
of this Act to Section 22.225(d), Government Code, apply to any case
in which a petition for review to the Supreme Court of Texas is
filed on or after the effective date of this Act.
(b) The changes in law made by Section 1.03 of this Act to
Sections 51.014(b) and (c), Civil Practice and Remedies Code, apply
to any case in which an appeal allowed by Section 51.014(a), Civil
Practice and Remedies Code, as amended by this Act, is taken and the
notice of appeal is filed on or after the effective date of this
Act.
ARTICLE 2. SETTLEMENT
SECTION 2.01. Subtitle C, Title 2, Civil Practice and
Remedies Code, is amended by adding Chapter 42 to read as follows:
CHAPTER 42. SETTLEMENT
Sec. 42.001. DEFINITIONS. In this chapter:
(1) "Claim" means a request, including a counterclaim,
cross-claim, or third-party claim, to recover monetary damages.
(2) "Claimant" means a person making a claim.
(3) "Defendant" means a person from whom a claimant
seeks recovery on a claim, including a counterdefendant,
cross-defendant, or third-party defendant.
(4) "Governmental unit" means the state, a unit of
state government, or a political subdivision of this state.
(5) "Litigation costs" means money actually spent and
obligations actually incurred that are directly related to the case
in which a settlement offer is made. The term includes:
(A) court costs;
(B) reasonable fees for not more than two
testifying expert witnesses; and
(C) reasonable attorney's fees.
(6) "Settlement offer" means an offer to settle or
compromise a claim made in compliance with this chapter.
Sec. 42.002. APPLICABILITY AND EFFECT. (a) The settlement
procedures provided in this chapter apply only to claims for
monetary relief.
(b) This chapter does not apply to:
(1) a class action;
(2) a shareholder's derivative action;
(3) an action by or against a governmental unit;
(4) an action brought under the Family Code;
(5) an action to collect workers' compensation
benefits under Subtitle A, Title 5, Labor Code; or
(6) an action filed in a justice of the peace court.
(c) This chapter does not apply until a defendant files a
declaration that the settlement procedure allowed by this chapter
is available in the action. If there is more than one defendant,
the settlement procedure allowed by this chapter is available only
in relation to the defendant that filed the declaration and to the
parties that make or receive offers of settlement in relation to
that defendant.
(d) This chapter does not limit or affect the ability of any
person to:
(1) make an offer to settle or compromise a claim that
does not comply with this chapter; or
(2) offer to settle or compromise a claim to which this
chapter does not apply.
(e) An offer to settle or compromise that is not made under
this chapter or an offer to settle or compromise made in an action
to which this chapter does not apply does not entitle the offering
party to recover litigation costs under this chapter.
Sec. 42.003. MAKING SETTLEMENT OFFER. A settlement offer
must:
(1) be in writing;
(2) state that it is made under this chapter;
(3) state the terms by which the claims may be settled;
(4) state a deadline by which the settlement offer
must be accepted; and
(5) be served on all parties to whom the settlement
offer is made.
Sec. 42.004. AWARDING LITIGATION COSTS. (a) If a
settlement offer is made and rejected and the judgment to be
rendered will be significantly less favorable to the rejecting
party than was the settlement offer, the offering party shall
recover litigation costs from the rejecting party.
(b) A judgment will be significantly less favorable to the
rejecting party than is the settlement offer if:
(1) the rejecting party is a claimant and the award
will be less than 80 percent of the rejected offer; or
(2) the rejecting party is a defendant and the award
will be more than 120 percent of the rejected offer.
(c) The litigation costs that may be recovered by the
offering party under this section are limited to those litigation
costs incurred by the offering party after the date the rejecting
party rejected the settlement offer.
(d) The litigation costs that may be awarded under this
chapter may not be greater than an amount computed by:
(1) determining the sum of:
(A) 50 percent of the economic damages to be
awarded to the claimant in the judgment;
(B) 100 percent of the noneconomic damages to be
awarded to the claimant in the judgment; and
(C) 100 percent of the exemplary or additional
damages to be awarded to the claimant in the judgment; and
(2) subtracting from the amount determined under
Subdivision (1) the amount of any statutory or contractual liens in
connection with the occurrences or incidents giving rise to the
claim.
(e) If a claimant or defendant is entitled to recover fees
and costs under another law, that claimant or defendant may not
recover litigation costs in addition to the fees and costs
recoverable under the other law.
(f) If a claimant or defendant is entitled to recover fees
and costs under another law, the court must not include fees and
costs incurred by that claimant or defendant after the date of
rejection of the settlement offer when calculating the amount of
the judgment to be rendered under Subsection (a).
(g) If litigation costs are to be awarded against a
claimant, those litigation costs shall be awarded to the defendant
in the judgment as an offset against the claimant's recovery from
that defendant.
Sec. 42.005. SUPREME COURT TO MAKE RULES. (a) The supreme
court shall promulgate rules implementing this chapter. The rules
must be limited to settlement offers made under this chapter. The
rules must be in effect on January 1, 2004.
(b) The rules promulgated by the supreme court must provide:
(1) the date by which a defendant or defendants must
file the declaration required by Section 42.002(c);
(2) the date before which a party may not make a
settlement offer;
(3) the date after which a party may not make a
settlement offer; and
(4) procedures for:
(A) making an initial settlement offer;
(B) making successive settlement offers;
(C) withdrawing a settlement offer;
(D) accepting a settlement offer;
(E) rejecting a settlement offer; and
(F) modifying the deadline for making,
withdrawing, accepting, or rejecting a settlement offer.
(c) The rules promulgated by the supreme court must address
actions in which there are multiple parties and must provide that if
the offering party joins another party or designates a responsible
third party after making the settlement offer, the party to whom the
settlement offer was made may declare the offer void.
(d) The rules promulgated by the supreme court may:
(1) designate other actions to which the settlement
procedure of this chapter does not apply; and
(2) address other matters considered necessary by the
supreme court to the implementation of this chapter.
SECTION 2.02. The changes in law provided by this article
apply only to an action filed on or after January 1, 2004.
ARTICLE 3. VENUE; FORUM NON CONVENIENS
SECTION 3.01. Section 74.024(c), Government Code, is
amended to read as follows:
(c) The supreme court may consider the adoption of rules
relating to:
(1) nonbinding time standards for pleading,
discovery, motions, and dispositions;
(2) nonbinding dismissal of inactive cases from
dockets, if the dismissal is warranted;
(3) attorney's accountability for and incentives to
avoid delay and to meet time standards;
(4) penalties for filing frivolous motions;
(5) firm trial dates;
(6) restrictive devices on discovery;
(7) a uniform dockets policy;
(8) formalization of settlement conferences or
settlement programs; [and]
(9) standards for selection and management of
nonjudicial personnel; and
(10) transfer of related cases for consolidated or
coordinated pretrial proceedings.
SECTION 3.02. Chapter 74, Government Code, is amended by
adding Subchapter H to read as follows:
SUBCHAPTER H. JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
Sec. 74.161. JUDICIAL PANEL ON MULTIDISTRICT LITIGATION.
(a) The judicial panel on multidistrict litigation consists of
five members designated from time to time by the chief justice of
the supreme court. The members of the panel must be active court of
appeals justices or administrative judges.
(b) The concurrence of three panel members is necessary to
any action by the panel.
Sec. 74.162. TRANSFER OF CASES BY PANEL. Notwithstanding
any other law to the contrary, the judicial panel on multidistrict
litigation may transfer civil actions involving one or more common
questions of fact pending in the same or different constitutional
courts, county courts at law, probate courts, or district courts to
any district court for consolidated or coordinated pretrial
proceedings, including summary judgment or other dispositive
motions, but not for trial on the merits. A transfer may be made by
the judicial panel on multidistrict litigation on its determination
that the transfer will:
(1) be for the convenience of the parties and
witnesses; and
(2) promote the just and efficient conduct of the
actions.
Sec. 74.163. OPERATION; RULES. (a) The judicial panel on
multidistrict litigation must operate according to rules of
practice and procedure adopted by the supreme court under Section
74.024. The rules adopted by the supreme court must:
(1) allow the panel to transfer related civil actions
for consolidated or coordinated pretrial proceedings;
(2) allow transfer of civil actions only on the panel's
written finding that transfer is for the convenience of the parties
and witnesses and will promote the just and efficient conduct of the
actions;
(3) require the remand of transferred actions to the
transferor court for trial on the merits; and
(4) provide for appellate review of certain or all
panel orders by extraordinary writ.
(b) The panel may prescribe additional rules for the conduct
of its business not inconsistent with the law or rules adopted by
the supreme court.
Sec. 74.164. AUTHORITY TO PRESIDE. Notwithstanding any
other law to the contrary, a judge who is qualified and authorized
by law to preside in the court to which an action is transferred
under this subchapter may preside over the transferred action as if
the transferred action were originally filed in the transferor
court.
SECTION 3.03. Section 15.003, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 15.003. MULTIPLE PLAINTIFFS AND INTERVENING
PLAINTIFFS. (a) In a suit in which there is [where] more than one
plaintiff, whether the plaintiffs are included by joinder, by
intervention, because the lawsuit was begun by more than one
plaintiff, or otherwise, [is joined] each plaintiff must,
independently of every [any] other plaintiff, establish proper
venue. If a plaintiff cannot independently [Any person who is
unable to] establish proper venue, that plaintiff's part of the
suit, including all of that plaintiff's claims and causes of
action, must be transferred to a county of proper venue or
dismissed, as is appropriate, [may not join or maintain venue for
the suit as a plaintiff] unless that plaintiff [the person],
independently of every [any] other plaintiff, establishes that:
(1) joinder of that plaintiff or intervention in the
suit by that plaintiff is proper under the Texas Rules of Civil
Procedure;
(2) maintaining venue as to that plaintiff in the
county of suit does not unfairly prejudice another party to the
suit;
(3) there is an essential need to have that plaintiff's
[the person's] claim tried in the county in which the suit is
pending; and
(4) the county in which the suit is pending is a fair
and convenient venue for that plaintiff [the person seeking to join
in or maintain venue for the suit] and all [the] persons against
whom the suit is brought.
(b) An interlocutory appeal may be taken of a trial court's
determination under Subsection (a) that:
(1) a plaintiff did or did not independently establish
proper venue; or
(2) a plaintiff that did not independently establish
proper venue did or did not establish the items prescribed by
Subsections (a)(1)-(4) [A person may not intervene or join in a
pending suit as a plaintiff unless the person, independently of any
other plaintiff:
[(1) establishes proper venue for the county in which
the suit is pending; or
[(2) satisfies the requirements of Subdivisions (1)
through (4) of Subsection (a)].
(c) An [Any person seeking intervention or joinder, who is
unable to independently establish proper venue, or a party opposing
intervention or joinder of such a person may contest the decision of
the trial court allowing or denying intervention or joinder by
taking an] interlocutory appeal permitted by Subsection (b) must be
taken to the court of appeals district in which the trial court is
located under the procedures established for interlocutory
appeals. The appeal may be taken by a party that is affected by the
trial court's determination under Subsection (a). [The appeal must
be perfected not later than the 20th day after the date the trial
court signs the order denying or allowing the intervention or
joinder.] The court of appeals shall:
(1) determine whether the trial court's order [joinder
or intervention] is proper based on an independent determination
from the record and not under either an abuse of discretion or
substantial evidence standard; and
(2) render judgment [its decision] not later than the
120th day after the date the appeal is perfected [by the complaining
party].
(d) An interlocutory appeal under Subsection (b) has the
effect of staying the commencement of trial in the trial court
pending resolution of the appeal.
SECTION 3.04. Section 71.051(b), Civil Practice and
Remedies Code, is amended to read as follows:
(b) If a court of this state, on written motion of a party,
finds that in the interest of justice and for the convenience of the
parties a claim or action to which this section applies would be
more properly heard in a forum outside this state, the court shall
decline to exercise jurisdiction under the doctrine of forum non
conveniens and shall stay or dismiss the claim or action. In
determining whether to grant a motion to stay or dismiss an action
under the doctrine of forum non conveniens, the court may consider
whether [With respect to a plaintiff who is a legal resident of the
United States, on written motion of a party, a claim or action to
which this section applies may be stayed or dismissed in whole or in
part under the doctrine of forum non conveniens if the party seeking
to stay or dismiss the claim or action proves by a preponderance of
the evidence that]:
(1) an alternate [alternative] forum exists in which
the claim or action may be tried;
(2) the alternate forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of
this state would work a substantial injustice to the moving party;
(4) the alternate forum, as a result of the submission
of the parties or otherwise, can exercise jurisdiction over all the
defendants properly joined to the plaintiff's claim;
(5) the balance of the private interests of the
parties and the public interest of the state predominate in favor of
the claim or action being brought in an alternate forum; and
(6) the stay or dismissal would not result in
unreasonable duplication or proliferation of litigation.
SECTION 3.05. Section 5A, Texas Probate Code, is amended by
adding Subsection (f) to read as follows:
(f) Notwithstanding any other provision of this chapter,
the proper venue for an action by or against a personal
representative for personal injury, death, or property damages is
determined under Section 15.007, Civil Practice and Remedies Code.
SECTION 3.06. Section 5B, Texas Probate Code, is amended to
read as follows:
Sec. 5B. TRANSFER OF PROCEEDING. (a) A judge of a
statutory probate court, on the motion of a party to the action or
on the motion of a person interested in an estate, may transfer to
his court from a district, county, or statutory court a cause of
action appertaining to or incident to an estate pending in the
statutory probate court or a cause of action in which a personal
representative of an estate pending in the statutory probate court
is a party and may consolidate the transferred cause of action with
the other proceedings in the statutory probate court relating to
that estate.
(b) Notwithstanding any other provision of this chapter,
the proper venue for an action by or against a personal
representative for personal injury, death, or property damages is
determined under Section 15.007, Civil Practice and Remedies Code.
SECTION 3.07. Section 607, Texas Probate Code, is amended
by adding Subsection (e) to read as follows:
(e) Notwithstanding any other provision of this chapter,
the proper venue for an action by or against a personal
representative for personal injury, death, or property damages is
determined under Section 15.007, Civil Practice and Remedies Code.
SECTION 3.08. Section 281.056(a), Health and Safety Code,
is amended to read as follows:
(a) The board may sue and be sued. A health care liability
claim, as defined by Section 74.001, Civil Practice and Remedies
Code, may be brought against the district only in the county in
which the district is established.
SECTION 3.09. Sections 71.051(a) and 71.052, Civil Practice
and Remedies Code, are repealed.
ARTICLE 4. PROPORTIONATE RESPONSIBILITY AND
DESIGNATION OF RESPONSIBLE PARTIES
SECTION 4.01. Section 33.002(a), Civil Practice and
Remedies Code, is amended to read as follows:
(a) This [Except as provided by Subsections (b) and (c),
this] chapter applies to:
(1) any cause of action based on tort in which a
defendant, settling person, or responsible third party is found
responsible for a percentage of the harm for which relief is sought;
or
(2) any action brought under the Deceptive Trade
Practices-Consumer Protection Act (Subchapter E, Chapter 17,
Business & Commerce Code) in which a defendant, settling person, or
responsible third party is found responsible for a percentage of
the harm for which relief is sought.
SECTION 4.02. Section 33.003, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 33.003. DETERMINATION OF PERCENTAGE OF
RESPONSIBILITY. (a) The trier of fact, as to each cause of action
asserted, shall determine the percentage of responsibility, stated
in whole numbers, for the following persons with respect to each
person's causing or contributing to cause in any way the harm for
which recovery of damages is sought, whether by negligent act or
omission, by any defective or unreasonably dangerous product, by
other conduct or activity that violates an applicable legal
standard, or by any combination of these:
(1) each claimant;
(2) each defendant;
(3) each settling person; and
(4) each responsible third party who has been
designated [joined] under Section 33.004.
(b) This section does not allow a submission to the jury of a
question regarding conduct by any person without sufficient
evidence to support the submission.
SECTION 4.03. The heading to Section 33.004, Civil Practice
and Remedies Code, is amended to read as follows:
Sec. 33.004. DESIGNATION [JOINDER] OF RESPONSIBLE THIRD
PARTY [PARTIES].
SECTION 4.04. Section 33.004, Civil Practice and Remedies
Code, is amended by amending Subsections (a), (b), and (e) and
adding Subsections (f)-(l) to read as follows:
(a) A [Except as provided in Subsections (d) and (e), prior
to the expiration of limitations on the claimant's claim for
damages against the defendant and on timely motion made for that
purpose, a] defendant may seek to designate a person as [join] a
responsible third party by filing a motion for leave to designate
that person as a responsible third party [who has not been sued by
the claimant]. The motion must be filed on or before the 60th day
before the trial date unless the court finds good cause to allow the
motion to be filed at a later date.
(b) Nothing in this section affects [shall affect] the
third-party practice as previously recognized in the rules and
statutes of this state with regard to the assertion by a defendant
of rights to contribution or indemnity. Nothing in this section
affects [shall affect] the filing of cross-claims or counterclaims.
(e) If a person is designated under this section as a
responsible third party, a [A] claimant is not barred by
limitations from seeking to [may] join that person [a responsible
third party], even though such joinder would otherwise be barred by
limitations, if the claimant seeks to join that person [the
responsible third party] not later than 60 days after that person is
designated as a responsible third party [a third party claim is
filed under Subsection (d)].
(f) A court shall grant leave to designate the named person
as a responsible third party unless another party files an
objection to the motion for leave on or before the 15th day after
the date the motion is served.
(g) If an objection to the motion for leave is timely filed,
the court shall grant leave to designate the person as a responsible
third party unless the objecting party establishes:
(1) the defendant did not plead sufficient facts
concerning the alleged responsibility of the person to satisfy the
pleading requirement of the Texas Rules of Civil Procedure; and
(2) after having been granted leave to replead, the
defendant failed to plead sufficient facts concerning the alleged
responsibility of the person to satisfy the pleading requirements
of the Texas Rules of Civil Procedure.
(h) By granting a motion for leave to designate a person as a
responsible third party, the person named in the motion is
designated as a responsible third party for purposes of this
chapter without further action by the court or any party.
(i) The filing or granting of a motion for leave to
designate a person as a responsible third party or a finding of
fault against the person:
(1) does not by itself impose liability on the person;
and
(2) may not be used in any other proceeding, on the
basis of res judicata, collateral estoppel, or any other legal
theory, to impose liability on the person.
(j) Notwithstanding any other provision of this section,
if, not later than 60 days after the filing of the defendant's
original answer, the defendant alleges in an answer filed with the
court that an unknown person committed a criminal act that was a
cause of the loss or injury that is the subject of the lawsuit, the
court shall grant a motion for leave to designate the unknown person
as a responsible third party if:
(1) the court determines that the defendant has
pleaded facts sufficient for the court to determine that there is a
reasonable probability that the act of the unknown person was
criminal;
(2) the defendant has stated in the answer all
identifying characteristics of the unknown person, known at the
time of the answer; and
(3) the allegation satisfies the pleading
requirements of the Texas Rules of Civil Procedure.
(k) An unknown person designated as a responsible third
party under Subsection (j) is denominated as "Jane Doe" or "John
Doe" until the person's identity is known.
(l) After adequate time for discovery, a party may move to
strike the designation of a responsible third party on the ground
that there is no evidence that the designated person is responsible
for any portion of the claimant's alleged injury or damage. The
court shall grant the motion to strike unless a defendant produces
sufficient evidence to raise a genuine issue of fact regarding the
designated person's responsibility for the claimant's injury or
damage.
SECTION 4.05. Sections 33.011(1), (2), (5), and (6), Civil
Practice and Remedies Code, are amended to read as follows:
(1) "Claimant" means a person [party] seeking recovery
of damages [pursuant to the provisions of Section 33.001],
including a plaintiff, counterclaimant, cross-claimant, or
third-party plaintiff [seeking recovery of damages]. In an action
in which a party seeks recovery of damages for injury to another
person, damage to the property of another person, death of another
person, or other harm to another person, "claimant" includes:
(A) the person who was injured, was harmed, or
died or whose property was damaged; and
(B) any person who is [both that other person and
the party] seeking, has sought, or could seek recovery of damages
for the injury, harm, or death of that person or for the damage to
the property of that person [pursuant to the provisions of Section
33.001].
(2) "Defendant" includes any person [party] from whom,
at the time of the submission of the case to the trier of fact, a
claimant seeks recovery of damages [pursuant to the provisions of
Section 33.001 at the time of the submission of the case to the
trier of fact].
(5) "Settling person" means a person who [at the time
of submission] has, at any time, paid or promised to pay money or
anything of monetary value to a claimant [at any time] in
consideration of potential liability [pursuant to the provisions of
Section 33.001] with respect to the personal injury, property
damage, death, or other harm for which recovery of damages is
sought.
(6) [(A)] "Responsible third party" means any person
who is alleged to have caused or contributed to causing in any way
the harm for which recovery of damages is sought, whether by
negligent act or omission, by any defective or unreasonably
dangerous product, by other conduct or activity that violates an
applicable legal standard, or by any combination of these. [to whom
all of the following apply:
[(i) the court in which the action was filed
could exercise jurisdiction over the person;
[(ii) the person could have been, but was
not, sued by the claimant; and
[(iii) the person is or may be liable to the
plaintiff for all or a part of the damages claimed against the named
defendant or defendants.
[(B)] The term "responsible third party" does not
include a seller eligible for indemnity under Section 82.002[:
[(i) the claimant's employer, if the
employer maintained workers' compensation insurance coverage, as
defined by Section 401.011(44), Labor Code, at the time of the act,
event, or occurrence made the basis of the claimant's suit; or
[(ii) a person or entity that is a debtor in
bankruptcy proceedings or a person or entity against whom this
claimant's claim has been discharged in bankruptcy, except to the
extent that liability insurance or other source of third party
funding may be available to pay claims asserted against the
debtor].
SECTION 4.06. Section 33.012, Civil Practice and Remedies
Code, is amended by amending Subsection (b) and adding Subsection
(c) to read as follows:
(b) If the claimant has settled with one or more persons,
the court shall further reduce the amount of damages to be recovered
by the claimant with respect to a cause of action by a percentage
equal to each settling person's percentage of responsibility
[credit equal to one of the following, as elected in accordance with
Section 33.014:
[(1) the sum of the dollar amounts of all settlements;
or
[(2) a dollar amount equal to the sum of the following
percentages of damages found by the trier of fact:
[(A) 5 percent of those damages up to $200,000;
[(B) 10 percent of those damages from $200,001 to
$400,000;
[(C) 15 percent of those damages from $400,001 to
$500,000; and
[(D) 20 percent of those damages greater than
$500,000].
(c) Notwithstanding Subsection (b), if the claimant in a
health care liability claim filed under Chapter 74 has settled with
one or more persons, the court shall further reduce the amount of
damages to be recovered by the claimant with respect to a cause of
action by an amount equal to one of the following, as elected by the
defendant:
(1) the sum of the dollar amounts of all settlements;
or
(2) a percentage equal to each settling person's
percentage of responsibility as found by the trier of fact.
(d) An election made under Subsection (c) shall be made by
any defendant filing a written election before the issues of the
action are submitted to the trier of fact and when made, shall be
binding on all defendants. If no defendant makes this election or
if conflicting elections are made, all defendants are considered to
have elected Subsection (c)(1).
SECTION 4.07. Section 33.013, Civil Practice and Remedies
Code, is amended by amending Subsections (a) and (b) and adding
Subsections (e) and (f) to read as follows:
(a) Except as provided in Subsection [Subsections] (b) [and
(c)], a liable defendant is liable to a claimant only for the
percentage of the damages found by the trier of fact equal to that
defendant's percentage of responsibility with respect to the
personal injury, property damage, death, or other harm for which
the damages are allowed.
(b) Notwithstanding Subsection (a), each liable defendant
is, in addition to his liability under Subsection (a), jointly and
severally liable for the damages recoverable by the claimant under
Section 33.012 with respect to a cause of action if:
(1) the percentage of responsibility attributed to the
defendant with respect to a cause of action is greater than 50
percent; or
(2) the defendant, with the specific intent to do harm
to others, acted in concert with another person to engage in the
conduct described in the following provisions of the Penal Code and
in so doing proximately caused the damages legally recoverable by
the claimant:
(A) Section 19.02 (murder);
(B) Section 19.03 (capital murder);
(C) Section 20.04 (aggravated kidnapping);
(D) Section 22.02 (aggravated assault);
(E) Section 22.011 (sexual assault);
(F) Section 22.021 (aggravated sexual assault);
(G) Section 22.04 (injury to a child, elderly
individual, or disabled individual);
(H) Section 32.21 (forgery);
(I) Section 32.43 (commercial bribery);
(J) Section 32.45 (misapplication of fiduciary
property or property of financial institution);
(K) Section 32.46 (securing execution of
document by deception);
(L) Section 32.47 (fraudulent destruction,
removal, or concealment of writing); or
(M) conduct described in Chapter 31 the
punishment level for which is a felony of the third degree or
higher.
(e) Notwithstanding anything to the contrary stated in the
provisions of the Penal Code listed in Subsection (b)(2), that
subsection applies only if the claimant proves the defendant acted
or failed to act with specific intent to do harm. A defendant acts
with specific intent to do harm with respect to the nature of the
defendant's conduct and the result of the person's conduct when it
is the person's conscious effort or desire to engage in the conduct
for the purpose of doing substantial harm to others.
(f) The jury may not be made aware through voir dire,
introduction into evidence, instruction, or any other means that
the conduct to which Subsection (b)(2) refers is defined by the
Penal Code.
SECTION 4.08. Section 33.017, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 33.017. PRESERVATION OF EXISTING RIGHTS OF INDEMNITY.
Nothing in this chapter shall be construed to affect any rights of
indemnity granted by [to a seller eligible for indemnity by Chapter
82, the Texas Motor Vehicle Commission Code (Article 4413(36),
Vernon's Texas Civil Statutes), or] any [other] statute, [nor shall
it affect rights of indemnity granted] by contract, or by [at]
common law. To the extent of any conflict between this chapter and
any right to indemnification granted by [Section 82.002, the Texas
Motor Vehicle Commission Code (Article 4413(36), Vernon's Texas
Civil Statutes), or any other] statute, contract, or common law,
those rights of indemnification shall prevail over the provisions
of this chapter.
SECTION 4.09. Section 417.001(b), Labor Code, is amended to
read as follows:
(b) If a benefit is claimed by an injured employee or a legal
beneficiary of the employee, the insurance carrier is subrogated to
the rights of the injured employee and may enforce the liability of
the third party in the name of the injured employee or the legal
beneficiary. The insurance carrier's subrogation interest is
limited to the amount of the total benefits paid or assumed by the
carrier to the employee or the legal beneficiary, less the amount by
which the court reduces the judgment based on the percentage of
responsibility determined by the trier of fact under Section
33.003, Civil Practice and Remedies Code, attributable to the
employer. If the recovery is for an amount greater than the amount
of the insurance carrier's subrogation interest [that paid or
assumed by the insurance carrier to the employee or the legal
beneficiary], the insurance carrier shall:
(1) reimburse itself and pay the costs from the amount
recovered; and
(2) pay the remainder of the amount recovered to the
injured employee or the legal beneficiary.
SECTION 4.10. The following sections of the Civil Practice
and Remedies Code are repealed:
(1) 33.002(b), (d), (e), (f), (g), and (h);
(2) 33.004(c) and (d);
(3) 33.011(7);
(4) 33.012(c);
(5) 33.013(c); and
(6) 33.014.
SECTION 4.11. Nothing in the changes to Chapter 33, Civil
Practice and Remedies Code, made by this article allowing an
employer covered by workers' compensation insurance to be
designated as a responsible third party affects or impairs the
immunity granted to the employer by workers' compensation law.
SECTION 4.12. The supreme court shall amend Rule 194.2,
Texas Rules of Civil Procedure, as soon as practical following the
effective date of this article, to include disclosures of the name,
address, and telephone number of any person who may be designated as
a responsible third party.
ARTICLE 5. PRODUCTS LIABILITY
SECTION 5.01. Section 16.012, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 16.012. PRODUCTS LIABILITY[: MANUFACTURING
EQUIPMENT]. (a) In this section:
(1) "Claimant," ["products liability action,"]
"seller," and "manufacturer" have the meanings assigned by Section
82.001.
(2) "Products liability action" means any action
against a manufacturer or seller for recovery of damages or other
relief for harm 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,
and whether the relief sought is recovery of damages or any other
legal or equitable relief, including a suit for:
(A) injury or damage to or loss of real or
personal property;
(B) personal injury;
(C) wrongful death;
(D) economic loss; or
(E) declaratory, injunctive, or other equitable
relief. ["Manufacturing equipment" means equipment and machinery
used in the manufacturing, processing, or fabrication of tangible
personal property but does not include agricultural equipment or
machinery.]
(b) Except as provided by Subsections [Subsection] (c),
(d), and (d-1), a claimant must commence a products liability
action against a manufacturer or seller of a product [manufacturing
equipment] before the end of 15 years after the date of the sale of
the product [equipment] by the defendant.
(c) If a manufacturer or seller expressly warrants in
writing [represents] that the product [manufacturing equipment]
has a useful safe life of longer than 15 years, a claimant must
commence a products liability action against that manufacturer or
seller of the product [equipment] before the end of the number of
years warranted [represented] after the date of the sale of the
product [equipment] by that seller.
(d) This section does not apply to a products liability
action seeking damages for personal injury or wrongful death in
which the claimant alleges:
(1) the claimant was exposed to the product that is the
subject of the action before the end of 15 years after the date the
product was first sold;
(2) the claimant's exposure to the product caused the
claimant's disease that is the basis of the action; and
(3) the symptoms of the claimant's disease did not,
before the end of 15 years after the date of the first sale of the
product by the defendant, manifest themselves to a degree and for a
duration that would put a reasonable person on notice that the
person suffered some injury.
(d-1) This section does not reduce a limitations period for
a cause of action described by Subsection (d) [that applies to a
products liability action involving manufacturing equipment] that
accrues before the end of the limitations period under this
section.
(e) This section does not extend the limitations period
within which a products liability action involving the product
[manufacturing equipment] may be commenced under any other law.
(f) This section applies only to the sale and not to the
lease of a product [manufacturing equipment].
(g) This section does not apply to any claim to which the
General Aviation Revitalization Act of 1994 (Pub. L. No. 103-298,
108 Stat. 1552 (1994), reprinted in note, 49 U.S.C. Section 40101)
or its exceptions are applicable.
SECTION 5.02. Chapter 82, Civil Practice and Remedies Code,
is amended by adding Sections 82.003, 82.007, and 82.008 to read as
follows:
Sec. 82.003. LIABILITY OF NONMANUFACTURING SELLERS. (a) A
seller that did not manufacture a product is not liable for harm
caused to the claimant by that product unless the claimant proves:
(1) that the seller participated in the design of the
product;
(2) that the seller altered or modified the product
and the claimant's harm resulted from that alteration or
modification;
(3) that the seller installed the product, or had the
product installed, on another product and the claimant's harm
resulted from the product's installation onto the assembled
product;
(4) that:
(A) the seller exercised substantial control
over the content of a warning or instruction that accompanied the
product;
(B) the warning or instruction was inadequate;
and
(C) the claimant's harm resulted from the
inadequacy of the warning or instruction;
(5) that:
(A) the seller made an express factual
representation about an aspect of the product;
(B) the representation was incorrect;
(C) the claimant relied on the representation in
obtaining or using the product; and
(D) if the aspect of the product had been as
represented, the claimant would not have been harmed by the product
or would not have suffered the same degree of harm;
(6) that:
(A) the seller actually knew of a defect to the
product at the time the seller supplied the product; and
(B) the claimant's harm resulted from the defect;
or
(7) that the manufacturer of the product is:
(A) insolvent; or
(B) not subject to the jurisdiction of the court.
(b) This section does not apply to a manufacturer or seller
whose liability in a products liability action is governed by
Chapter 2301, Occupations Code. In the event of a conflict, Chapter
2301, Occupations Code, prevails over this section.
Sec. 82.007. MEDICINES. (a) In a products liability action
alleging that an injury was caused by a failure to provide adequate
warnings or information with regard to a pharmaceutical product,
there is a rebuttable presumption that the defendant or defendants,
including a health care provider, manufacturer, distributor, and
prescriber, are not liable with respect to the allegations
involving failure to provide adequate warnings or information if:
(1) the warnings or information that accompanied the
product in its distribution were those approved by the United
States Food and Drug Administration for a product approved under
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et
seq.), as amended, or Section 351, Public Health Service Act (42
U.S.C. Section 262), as amended; or
(2) the warnings provided were those stated in
monographs developed by the United States Food and Drug
Administration for pharmaceutical products that may be distributed
without an approved new drug application.
(b) The claimant may rebut the presumption in Subsection (a)
as to each defendant by establishing that:
(1) the defendant, before or after pre-market approval
or licensing of the product, withheld from or misrepresented to the
United States Food and Drug Administration required information
that was material and relevant to the performance of the product and
was causally related to the claimant's injury;
(2) the pharmaceutical product was sold or prescribed
in the United States by the defendant after the effective date of an
order of the United States Food and Drug Administration to remove
the product from the market or to withdraw its approval of the
product;
(3)(A) the defendant recommended, promoted, or
advertised the pharmaceutical product for an indication not
approved by the United States Food and Drug Administration;
(B) the product was used as recommended,
promoted, or advertised; and
(C) the claimant's injury was causally related to
the recommended, promoted, or advertised use of the product;
(4)(A) the defendant prescribed the pharmaceutical
product for an indication not approved by the United States Food and
Drug Administration;
(B) the product was used as prescribed; and
(C) the claimant's injury was causally related to
the prescribed use of the product; or
(5) the defendant, before or after pre-market approval
or licensing of the product, engaged in conduct that would
constitute a violation of 18 U.S.C. Section 201 and that conduct
caused the warnings or instructions approved for the product by the
United States Food and Drug Administration to be inadequate.
Sec. 82.008. COMPLIANCE WITH GOVERNMENT STANDARDS. (a) In
a products liability action brought against a product manufacturer
or seller, there is a rebuttable presumption that the product
manufacturer or seller is not liable for any injury to a claimant
caused by some aspect of the formulation, labeling, or design of a
product if the product manufacturer or seller establishes that the
product's formula, labeling, or design complied with mandatory
safety standards or regulations adopted and promulgated by the
federal government, or an agency of the federal government, that
were applicable to the product at the time of manufacture and that
governed the product risk that allegedly caused harm.
(b) The claimant may rebut the presumption in Subsection (a)
by establishing that:
(1) the mandatory federal safety standards or
regulations applicable to the product were inadequate to protect
the public from unreasonable risks of injury or damage; or
(2) the manufacturer, before or after marketing the
product, withheld or misrepresented information or material
relevant to the federal government's or agency's determination of
adequacy of the safety standards or regulations at issue in the
action.
(c) In a products liability action brought against a product
manufacturer or seller, there is a rebuttable presumption that the
product manufacturer or seller is not liable for any injury to a
claimant allegedly caused by some aspect of the formulation,
labeling, or design of a product if the product manufacturer or
seller establishes that the product was subject to pre-market
licensing or approval by the federal government, or an agency of the
federal government, that the manufacturer complied with all of the
government's or agency's procedures and requirements with respect
to pre-market licensing or approval, and that after full
consideration of the product's risks and benefits the product was
approved or licensed for sale by the government or agency. The
claimant may rebut this presumption by establishing that:
(1) the standards or procedures used in the particular
pre-market approval or licensing process were inadequate to protect
the public from unreasonable risks of injury or damage; or
(2) the manufacturer, before or after pre-market
approval or licensing of the product, withheld from or
misrepresented to the government or agency information that was
material and relevant to the performance of the product and was
causally related to the claimant's injury.
(d) This section does not extend to manufacturing flaws or
defects even though the product manufacturer has complied with all
quality control and manufacturing practices mandated by the federal
government or an agency of the federal government.
(e) This section does not extend to products covered by
Section 82.007.
SECTION 5.03. As soon as practicable after the effective
date of this Act, the supreme court shall amend Rule 407(a), Texas
Rules of Evidence, to conform that rule to Rule 407, Federal Rules
of Evidence.
ARTICLE 6. INTEREST
SECTION 6.01. Section 304.003(c), Finance Code, is amended
to read as follows:
(c) The postjudgment interest rate is:
(1) the prime rate as published by the Federal Reserve
Bank of New York on [auction rate quoted on a discount basis for
52-week treasury bills issued by the United States government as
most recently published by the Federal Reserve Board before] the
date of computation;
(2) five [10] percent a year if the prime rate as
published by the Federal Reserve Bank of New York [auction rate]
described by Subdivision (1) is less than five [10] percent; or
(3) 15 [20] percent a year if the prime rate as
published by the Federal Reserve Bank of New York [auction rate]
described by Subdivision (1) is more than 15 [20] percent.
SECTION 6.02. Subchapter B, Chapter 304, Finance Code, is
amended by adding Section 304.1045 to read as follows:
Sec. 304.1045. FUTURE DAMAGES. Prejudgment interest may
not be assessed or recovered on an award of future damages.
SECTION 6.03. Section 304.108, Finance Code, is repealed.
SECTION 6.04. The changes in law made by this article apply
in any case in which a final judgment is signed or subject to appeal
on or after the effective date of this Act.
ARTICLE 7. APPEAL BONDS
SECTION 7.01. Section 35.006, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 35.006. STAY. (a) If the judgment debtor shows the
court that an appeal from the foreign judgment is pending or will be
taken, that the time for taking an appeal has not expired, or that a
stay of execution has been granted, has been requested, or will be
requested, and proves that the judgment debtor has furnished or
will furnish the security for the satisfaction of the judgment
required by the state in which it was rendered, the court shall stay
enforcement of the foreign judgment until the appeal is concluded,
the time for appeal expires, or the stay of execution expires or is
vacated.
(b) If the judgment debtor shows the court a ground on which
enforcement of a judgment of the court of this state would be
stayed, the court shall stay enforcement of the foreign judgment
for an appropriate period and require the same security for
suspending enforcement [satisfaction] of the judgment that is
required in this state in accordance with Section 52.006.
SECTION 7.02. Chapter 52, Civil Practice and Remedies Code,
is amended by adding Section 52.006 to read as follows:
Sec. 52.006. AMOUNT OF SECURITY FOR MONEY JUDGMENT. (a)
Subject to Subsection (b), when a judgment is for money, the amount
of security must equal the sum of:
(1) the amount of compensatory damages awarded in the
judgment;
(2) interest for the estimated duration of the appeal;
and
(3) costs awarded in the judgment.
(b) Notwithstanding any other law or rule of court, when a
judgment is for money, the amount of security must not exceed the
lesser of:
(1) 50 percent of the judgment debtor's net worth; or
(2) $25 million.
(c) On a showing by the judgment debtor that the judgment
debtor is likely to suffer substantial economic harm if required to
post security in an amount required under Subsection (a) or (b), the
trial court shall lower the amount of the security to an amount that
will not cause the judgment debtor substantial economic harm.
(d) An appellate court may review the amount of security as
allowed under Rule 24, Texas Rules of Appellate Procedure, except
that when a judgment is for money, the appellate court may not
modify the amount of security to exceed the amount allowed under
this section.
(e) Nothing in this section prevents a trial court from
enjoining the judgment debtor from dissipating or transferring
assets to avoid satisfaction of the judgment, but the trial court
may not make any order that interferes with the judgment debtor's
use, transfer, conveyance, or dissipation of assets in the normal
course of business.
SECTION 7.03. The following sections of the Civil Practice
and Remedies Code are repealed:
(1) 52.002;
(2) 52.003; and
(3) 52.004.
SECTION 7.04. (a) The changes in law made in Section 7.01
of this article apply to any judgment filed in this state under
Chapter 35, Civil Practice and Remedies Code, on or after the
effective date of this Act.
(b) The changes in law made in Sections 7.02 and 7.03 of this
article apply to any case in which a final judgment is signed on or
after the effective date of this Act.
ARTICLE 8. EVIDENCE RELATING TO SEAT BELTS
SECTION 8.01. Sections 545.412(d) and 545.413(g),
Transportation Code, are repealed.
ARTICLE 9. RESERVED
ARTICLE 10. HEALTH CARE
SECTION 10.01. Chapter 74, Civil Practice and Remedies
Code, is amended to read as follows:
CHAPTER 74. MEDICAL LIABILITY [GOOD SAMARITAN LAW:
LIABILITY FOR EMERGENCY CARE]
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 74.001. DEFINITIONS. (a) In this chapter:
(1) "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.
(2) "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.
(3) "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.
(4) "Court" means any federal or state court.
(5) "Disclosure panel" means the Texas Medical
Disclosure Panel.
(6) "Economic damages" has the meaning assigned by
Section 41.001.
(7) "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 placing
the patient's health in serious jeopardy, serious impairment to
bodily functions, or serious dysfunction of any bodily organ or
part. The term does not include medical care or treatment that
occurs after the patient is stabilized and is capable of receiving
medical treatment as a nonemergency patient or that is unrelated to
the original medical emergency.
(8) "Emergency medical services provider" means a
licensed public or private provider to which Chapter 773, Health
and Safety Code, applies.
(9) "Gross negligence" has the meaning assigned by
Section 41.001.
(10) "Health care" means any act or treatment
performed or furnished, or that should have been performed or
furnished, by any health care provider for, to, or on behalf of a
patient during the patient's medical care, treatment, or
confinement.
(11) "Health care institution" includes:
(A) an ambulatory surgical center;
(B) an assisted living facility licensed under
Chapter 247, Health and Safety Code;
(C) an emergency medical services provider;
(D) a health services district created under
Chapter 287, Health and Safety Code;
(E) a home and community support services agency;
(F) a hospice;
(G) a hospital;
(H) a hospital system;
(I) 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), as amended;
(J) a nursing home; or
(K) an end stage renal disease facility licensed
under Section 251.011, Health and Safety Code.
(12)(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) a registered nurse;
(ii) a dentist;
(iii) a podiatrist;
(iv) a pharmacist;
(v) a chiropractor;
(vi) an optometrist; or
(vii) a health care institution.
(B) The term includes:
(i) 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 physician acting in the course
and scope of the employment or contractual relationship.
(13) "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
professional or administrative services directly related to health
care, which proximately results in injury to or death of a claimant,
whether the claimant's claim or cause of action sounds in tort or
contract.
(14) "Home and community support services agency"
means a licensed public or provider agency to which Chapter 142,
Health and Safety Code, applies.
(15) "Hospice" means a hospice facility or activity to
which Chapter 142, Health and Safety Code, applies.
(16) "Hospital" means a licensed public or private
institution as defined in Chapter 241, Health and Safety Code, or
licensed under Chapter 577, Health and Safety Code.
(17) "Hospital system" means a system of hospitals
located in this state that are under the common governance or
control of a corporate parent.
(18) "Intermediate care facility for the mentally
retarded" means a licensed public or private institution to which
Chapter 252, Health and Safety Code, applies.
(19) "Medical care" means any act defined as
practicing medicine under Section 151.002, Occupations Code,
performed or furnished, or which should have been performed, by one
licensed to practice medicine in this state for, to, or on behalf of
a patient during the patient's care, treatment, or confinement.
(20) "Noneconomic damages" has the meaning assigned by
Section 41.001.
(21) "Nursing home" means a licensed public or private
institution to which Chapter 242, Health and Safety Code, applies.
(22) "Pharmacist" means one licensed under Chapter
551, Occupations Code, who, for the purposes of this chapter,
performs those activities limited to the dispensing of prescription
medicines which result in health care liability claims and does not
include any other cause of action that may exist at common law
against them, including but not limited to causes of action for the
sale of mishandled or defective products.
(23) "Physician" means:
(A) an individual 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).
(24) "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.
(25) "Representative" means the spouse, parent,
guardian, trustee, authorized attorney, or other authorized legal
agent of the patient or claimant.
(b) Any legal term or word of art used in this chapter, not
otherwise defined in this chapter, shall have such meaning as is
consistent with the common law.
Sec. 74.002. CONFLICT WITH OTHER LAW AND RULES OF CIVIL
PROCEDURE. (a) In the event of a conflict between this chapter and
another law, including a rule of procedure or evidence or court
rule, this chapter controls to the extent of the conflict.
(b) Notwithstanding Subsection (a), in the event of a
conflict between this chapter and Section 101.023, 102.003, or
108.002, those sections of this code control to the extent of the
conflict.
(c) The district courts and statutory county courts in a
county may not adopt local rules in conflict with this chapter.
Sec. 74.003. SOVEREIGN IMMUNITY NOT WAIVED. This chapter
does not waive sovereign immunity from suit or from liability.
Sec. 74.004. EXCEPTION FROM CERTAIN LAWS. (a)
Notwithstanding any other law, Sections 17.41-17.63, Business &
Commerce Code, do not apply to physicians or health care providers
with respect to claims for damages for personal injury or death
resulting, or alleged to have resulted, from negligence on the part
of any physician or health care provider.
(b) This section does not apply to pharmacists.
[Sections 74.005-74.050 reserved for expansion]
SUBCHAPTER B. NOTICE AND PLEADINGS
Sec. 74.051. NOTICE. (a) Any person or his authorized
agent asserting a health care liability claim shall give written
notice of such claim by certified mail, return receipt requested,
to each physician or health care provider against whom such claim is
being made at least 60 days before the filing of a suit in any court
of this state based upon a health care liability claim. The notice
must be accompanied by the authorization form for release of
protected health information as required under Section 74.052.
(b) In such pleadings as are subsequently filed in any
court, each party shall state that it has fully complied with the
provisions of this section and Section 74.052 and shall provide
such evidence thereof as the judge of the court may require to
determine if the provisions of this chapter have been met.
(c) Notice given as provided in this chapter shall toll the
applicable statute of limitations to and including a period of 75
days following the giving of the notice, and this tolling shall
apply to all parties and potential parties.
(d) All parties shall be entitled to obtain complete and
unaltered copies of the patient's medical records from any other
party within 45 days from the date of receipt of a written request
for such records; provided, however, that the receipt of a medical
authorization in the form required by Section 74.052 executed by
the claimant herein shall be considered compliance by the claimant
with this subsection.
(e) For the purposes of this section, and notwithstanding
Chapter 159, Occupations Code, or any other law, a request for the
medical records of a deceased person or a person who is incompetent
shall be deemed to be valid if accompanied by an authorization in
the form required by Section 74.052 signed by a parent, spouse, or
adult child of the deceased or incompetent person.
Sec. 74.052. AUTHORIZATION FORM FOR RELEASE OF PROTECTED
HEALTH INFORMATION. (a) Notice of a health care claim under
Section 74.051 must be accompanied by a medical authorization in
the form specified by this section. Failure to provide this
authorization along with the notice of health care claim shall
abate all further proceedings against the physician or health care
provider receiving the notice until 60 days following receipt by
the physician or health care provider of the required
authorization.
(b) If the authorization required by this section is
modified or revoked, the physician or health care provider to whom
the authorization has been given shall have the option to abate all
further proceedings until 60 days following receipt of a
replacement authorization that must comply with the form specified
by this section.
(c) The medical authorization required by this section
shall be in the following form and shall be construed in accordance
with the "Standards for Privacy of Individually Identifiable Health
Information" (45 C.F.R. Parts 160 and 164).
AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION
A. I, ___________(name of patient or authorized
representative), hereby authorize __________(name of physician or
other health care provider to whom the notice of health care claim
is directed) to obtain and disclose (within the parameters set out
below) the protected health information described below for the
following specific purposes:
1. To facilitate the investigation and evaluation of
the health care claim described in the accompanying Notice of
Health Care Claim; or
2. Defense of any litigation arising out of the claim
made the basis of the accompanying Notice of Health Care Claim.
B. The health information to be obtained, used, or disclosed
extends to and includes the verbal as well as the written and is
specifically described as follows:
1. The health information in the custody of the
following physicians or health care providers who have examined,
evaluated, or treated __________ (patient) in connection with the
injuries alleged to have been sustained in connection with the
claim asserted in the accompanying Notice of Health Care Claim.
(Here list the name and current address of all treating physicians
or health care providers). This authorization shall extend to any
additional physicians or health care providers that may in the
future evaluate, examine, or treat __________ (patient) for
injuries alleged in connection with the claim made the basis of the
attached Notice of Health Care Claim;
2. The health information in the custody of the
following physicians or health care providers who have examined,
evaluated, or treated __________ (patient) during a period
commencing five years prior to the incident made the basis of the
accompanying Notice of Health Care Claim. (Here list the name and
current address of such physicians or health care providers, if
applicable.)
C. Excluded Health Information - the following constitutes
a list of physicians or health care providers possessing health
care information concerning _________ (patient) to which this
authorization does not apply because I contend that such health
care information is not relevant to the damages being claimed or to
the physical, mental, or emotional condition of _________ (patient)
arising out of the claim made the basis of the accompanying Notice
of Health Care Claim. (Here state "none" or list the name of each
physician or health care provider to whom this authorization does
not extend and the inclusive dates of examination, evaluation, or
treatment to be withheld from disclosure.)
D. The persons or class of persons to whom the health
information of __________ (patient) will be disclosed or who will
make use of said information are:
1. Any and all physicians or health care providers
providing care or treatment to ___________ (patient);
2. Any liability insurance entity providing liability
insurance coverage or defense to any physician or health care
provider to whom Notice of Health Care Claim has been given with
regard to the care and treatment of _________ (patient);
3. Any consulting or testifying experts employed by or
on behalf of __________ (name of physician or health care provider
to whom Notice of Health Care Claim has been given) with regard to
the matter set out in the Notice of Health Care Claim accompanying
this authorization;
4. Any attorneys (including secretarial, clerical, or
paralegal staff) employed by or on behalf of __________(name of
physician or health care provider to whom Notice of Health Care
Claim has been given) with regard to the matter set out in the
Notice of Health Care Claim accompanying this authorization;
5. Any trier of the law or facts relating to any suit
filed seeking damages arising out of the medical care or treatment
of __________ (patient).
E. This authorization shall expire upon resolution of the
claim asserted or at the conclusion of any litigation instituted in
connection with the subject matter of the Notice of Health Care
Claim accompanying this authorization, whichever occurs sooner.
F. I understand that, without exception, I have the right to
revoke this authorization in writing. I further understand the
consequence of any such revocation as set out in Section 74.052,
Civil Practice and Remedies Code.
G. I understand that the signing of this authorization is
not a condition for continued treatment, payment, enrollment, or
eligibility for health plan benefits.
H. I understand that information used or disclosed pursuant
to this authorization may be subject to redisclosure by the
recipient and may no longer be protected by federal HIPAA privacy
regulations.
Signature of Patient/Representative
___________________________________
Date
___________________________________
Name of Patient/ Representative
___________________________________
Description of Representative's Authority
___________________________________
Sec. 74.053. PLEADINGS NOT TO STATE DAMAGE AMOUNT; SPECIAL
EXCEPTION; EXCLUSION FROM SECTION. Pleadings in a suit based on a
health care liability claim shall not specify an amount of money
claimed as damages. The defendant may file a special exception to
the pleadings on the ground the suit is not within the court's
jurisdiction, in which event the plaintiff shall inform the court
and defendant in writing of the total dollar amount claimed. This
section does not prevent a party from mentioning the total dollar
amount claimed in examining prospective jurors on voir dire or in
argument to the court or jury.
[Sections 74.054-74.100 reserved for expansion]
SUBCHAPTER C. INFORMED CONSENT
Sec. 74.101. THEORY OF RECOVERY. In a suit against a
physician or health care provider involving a health care liability
claim that is based on the failure of the physician or health care
provider to disclose or adequately disclose the risks and hazards
involved in the medical care or surgical procedure rendered by the
physician or health care provider, the only theory on which
recovery may be obtained is that of negligence in failing to
disclose the risks or hazards that could have influenced a
reasonable person in making a decision to give or withhold consent.
Sec. 74.102. TEXAS MEDICAL DISCLOSURE PANEL. (a) The Texas
Medical Disclosure Panel is created to determine which risks and
hazards related to medical care and surgical procedures must be
disclosed by health care providers or physicians to their patients
or persons authorized to consent for their patients and to
establish the general form and substance of such disclosure.
(b) The disclosure panel established herein is
administratively attached to the Texas Department of Health. The
Texas Department of Health, at the request of the disclosure panel,
shall provide administrative assistance to the panel; and the Texas
Department of Health and the disclosure panel shall coordinate
administrative responsibilities in order to avoid unnecessary
duplication of facilities and services. The Texas Department of
Health, at the request of the panel, shall submit the panel's budget
request to the legislature. The panel shall be subject, except
where inconsistent, to the rules and procedures of the Texas
Department of Health; however, the duties and responsibilities of
the panel as set forth in this chapter shall be exercised solely by
the disclosure panel, and the board or Texas Department of Health
shall have no authority or responsibility with respect to same.
(c) The disclosure panel is composed of nine members, with
three members licensed to practice law in this state and six members
licensed to practice medicine in this state. Members of the
disclosure panel shall be selected by the commissioner of health.
(d) At the expiration of the term of each member of the
disclosure panel so appointed, the commissioner shall select a
successor, and such successor shall serve for a term of six years,
or until his successor is selected. Any member who is absent for
three consecutive meetings without the consent of a majority of the
disclosure panel present at each such meeting may be removed by the
commissioner at the request of the disclosure panel submitted in
writing and signed by the chairman. Upon the death, resignation, or
removal of any member, the commissioner shall fill the vacancy by
selection for the unexpired portion of the term.
(e) Members of the disclosure panel are not entitled to
compensation for their services, but each panelist is entitled to
reimbursement of any necessary expense incurred in the performance
of his duties on the panel, including necessary travel expenses.
(f) Meetings of the panel shall be held at the call of the
chairman or on petition of at least three members of the panel.
(g) At the first meeting of the panel each year after its
members assume their positions, the panelists shall select one of
the panel members to serve as chairman and one of the panel members
to serve as vice chairman, and each such officer shall serve for a
term of one year. The chairman shall preside at meetings of the
panel, and in his absence, the vice chairman shall preside.
(h) Employees of the Texas Department of Health shall serve
as the staff for the panel.
Sec. 74.103. DUTIES OF DISCLOSURE PANEL. (a) To the extent
feasible, the panel shall identify and make a thorough examination
of all medical treatments and surgical procedures in which
physicians and health care providers may be involved in order to
determine which of those treatments and procedures do and do not
require disclosure of the risks and hazards to the patient or person
authorized to consent for the patient.
(b) The panel shall prepare separate lists of those medical
treatments and surgical procedures that do and do not require
disclosure and, for those treatments and procedures that do require
disclosure, shall establish the degree of disclosure required and
the form in which the disclosure will be made.
(c) Lists prepared under Subsection (b) together with
written explanations of the degree and form of disclosure shall be
published in the Texas Register.
(d) At least annually, or at such other period the panel may
determine from time to time, the panel will identify and examine any
new medical treatments and surgical procedures that have been
developed since its last determinations, shall assign them to the
proper list, and shall establish the degree of disclosure required
and the form in which the disclosure will be made. The panel will
also examine such treatments and procedures for the purpose of
revising lists previously published. These determinations shall be
published in the Texas Register.
Sec. 74.104. DUTY OF PHYSICIAN OR HEALTH CARE PROVIDER.
Before a patient or a person authorized to consent for a patient
gives consent to any medical care or surgical procedure that
appears on the disclosure panel's list requiring disclosure, the
physician or health care provider shall disclose to the patient or
person authorized to consent for the patient the risks and hazards
involved in that kind of care or procedure. A physician or health
care provider shall be considered to have complied with the
requirements of this section if disclosure is made as provided in
Section 74.105.
Sec. 74.105. MANNER OF DISCLOSURE. Consent to medical care
that appears on the disclosure panel's list requiring disclosure
shall be considered effective under this chapter if it is given in
writing, signed by the patient or a person authorized to give the
consent and by a competent witness, and if the written consent
specifically states the risks and hazards that are involved in the
medical care or surgical procedure in the form and to the degree
required by the disclosure panel under Section 74.103.
Sec. 74.106. EFFECT OF DISCLOSURE. (a) In a suit against a
physician or health care provider involving a health care liability
claim that is based on the negligent failure of the physician or
health care provider to disclose or adequately disclose the risks
and hazards involved in the medical care or surgical procedure
rendered by the physician or health care provider:
(1) both disclosure made as provided in Section 74.104
and failure to disclose based on inclusion of any medical care or
surgical procedure on the panel's list for which disclosure is not
required shall be admissible in evidence and shall create a
rebuttable presumption that the requirements of Sections 74.104 and
74.105 have been complied with and this presumption shall be
included in the charge to the jury; and
(2) failure to disclose the risks and hazards involved
in any medical care or surgical procedure required to be disclosed
under Sections 74.104 and 74.105 shall be admissible in evidence
and shall create a rebuttable presumption of a negligent failure to
conform to the duty of disclosure set forth in Sections 74.104 and
74.105, and this presumption shall be included in the charge to the
jury; but failure to disclose may be found not to be negligent if
there was an emergency or if for some other reason it was not
medically feasible to make a disclosure of the kind that would
otherwise have been negligence.
(b) If medical care or surgical procedure is rendered with
respect to which the disclosure panel has made no determination
either way regarding a duty of disclosure, the physician or health
care provider is under the duty otherwise imposed by law.
Sec. 74.107. INFORMED CONSENT FOR HYSTERECTOMIES. (a) The
disclosure panel shall develop and prepare written materials to
inform a patient or person authorized to consent for a patient of
the risks and hazards of a hysterectomy.
(b) The materials shall be available in English, Spanish,
and any other language the panel considers appropriate. The
information must be presented in a manner understandable to a
layperson.
(c) The materials must include:
(1) a notice that a decision made at any time to refuse
to undergo a hysterectomy will not result in the withdrawal or
withholding of any benefits provided by programs or projects
receiving federal funds or otherwise affect the patient's right to
future care or treatment;
(2) the name of the person providing and explaining
the materials;
(3) a statement that the patient or person authorized
to consent for the patient understands that the hysterectomy is
permanent and nonreversible and that the patient will not be able to
become pregnant or bear children if she undergoes a hysterectomy;
(4) a statement that the patient has the right to seek
a consultation from a second physician;
(5) a statement that the patient or person authorized
to consent for the patient has been informed that a hysterectomy is
a removal of the uterus through an incision in the lower abdomen or
vagina and that additional surgery may be necessary to remove or
repair other organs, including an ovary, tube, appendix, bladder,
rectum, or vagina;
(6) a description of the risks and hazards involved in
the performance of the procedure; and
(7) a written statement to be signed by the patient or
person authorized to consent for the patient indicating that the
materials have been provided and explained to the patient or person
authorized to consent for the patient and that the patient or person
authorized to consent for the patient understands the nature and
consequences of a hysterectomy.
(d) The physician or health care provider shall obtain
informed consent under this section and Section 74.104 from the
patient or person authorized to consent for the patient before
performing a hysterectomy unless the hysterectomy is performed in a
life-threatening situation in which the physician determines
obtaining informed consent is not reasonably possible. If
obtaining informed consent is not reasonably possible, the
physician or health care provider shall include in the patient's
medical records a written statement signed by the physician
certifying the nature of the emergency.
(e) The disclosure panel may not prescribe materials under
this section without first consulting with the Texas State Board of
Medical Examiners.
[Sections 74.108-74.150 reserved for expansion]
SUBCHAPTER D. EMERGENCY CARE
Sec. 74.151. LIABILITY FOR EMERGENCY CARE. (a) A person
who in good faith administers emergency care, including using an
automated external defibrillator, [at the scene of an emergency but
not in a hospital or other health care facility or means of medical
transport] is not liable in civil damages for an act performed
during the emergency unless the act is wilfully or wantonly
negligent.
(b) This section does not apply to care administered:
(1) for or in expectation of remuneration, provided
that being legally entitled to receive remuneration for the
emergency care rendered shall not determine whether or not the care
was administered for or in anticipation of remuneration; or
(2) by a person who was at the scene of the emergency
because he or a person he represents as an agent was soliciting
business or seeking to perform a service for remuneration.
[(c) If the scene of an emergency is in a hospital or other
health care facility or means of medical transport, a person who in
good faith administers emergency care is not liable in civil
damages for an act performed during the emergency unless the act is
wilfully or wantonly negligent, provided that this subsection does
not apply to care administered:
[(1) by a person who regularly administers care in a
hospital emergency room unless such person is at the scene of the
emergency for reasons wholly unrelated to the person's work in
administering health care; or
[(2) by an admitting or attending physician of the
patient or a treating physician associated by the admitting or
attending physician of the patient in question.
[(d) For purposes of Subsections (b)(1) and (c)(1), a person
who would ordinarily receive or be entitled to receive a salary,
fee, or other remuneration for administering care under such
circumstances to the patient in question shall be deemed to be
acting for or in expectation of remuneration even if the person
waives or elects not to charge or receive remuneration on the
occasion in question.]
(e) This section does not apply to a person whose negligent
act or omission was a producing cause of the emergency for which
care is being administered.
Sec. 74.152 [74.002]. UNLICENSED MEDICAL PERSONNEL.
Persons not licensed or certified in the healing arts who in good
faith administer emergency care as emergency medical service
personnel are not liable in civil damages for an act performed in
administering the care unless the act is wilfully or wantonly
negligent. This section applies without regard to whether the care
is provided for or in expectation of remuneration.
Sec. 74.153. 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
in a hospital emergency department or obstetrical unit or in a
surgical suite immediately following the evaluation or treatment of
a patient in a hospital emergency department, the claimant 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 claimant shows by a
preponderance of the evidence that the physician or health care
provider, with wilful and wanton negligence, deviated from 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.
Sec. 74.154. JURY INSTRUCTIONS IN CASES INVOLVING EMERGENCY
MEDICAL CARE. (a) In an action for damages that involves a claim of
negligence arising from the provision of emergency medical care in
a hospital emergency department or obstetrical unit or in a
surgical suite immediately following the evaluation or treatment of
a patient in a hospital emergency department, the court shall
instruct the jury to consider, together with all other relevant
matters:
(1) whether the person providing care did or did not
have the patient's medical history or was able or unable to obtain a
full medical history, including the knowledge of preexisting
medical conditions, allergies, and medications;
(2) the presence or 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) 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;
(2) that is unrelated to the original medical
emergency; or
(3) that is related to an emergency caused in whole or
in part by the negligence of the defendant.
[Sections 74.155-74.200 reserved for expansion]
SUBCHAPTER E. RES IPSA LOQUITUR
Sec. 74.201. APPLICATION OF RES IPSA LOQUITUR. The common
law doctrine of res ipsa loquitur shall only apply to health care
liability claims against health care providers or physicians in
those cases to which it has been applied by the appellate courts of
this state as of August 29, 1977.
[Sections 74.202-74.250 reserved for expansion]
SUBCHAPTER F. STATUTE OF LIMITATIONS
Sec. 74.251. STATUTE OF LIMITATIONS ON HEALTH CARE
LIABILITY CLAIMS. (a) Notwithstanding any other law and subject to
Subsection (b), 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 section 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.
[Sections 74.252-74.300 reserved for expansion]
SUBCHAPTER G. LIABILITY LIMITS
Sec. 74.301. LIMITATION ON NONECONOMIC DAMAGES. (a) In an
action on a health care liability claim where final judgment is
rendered against a physician or health care provider other than a
health care institution, the limit of civil liability for
noneconomic damages of the physician or health care provider other
than a health care institution, inclusive of all persons and
entities for which vicarious liability theories may apply, 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 other than a health care institution against whom the
claim is asserted or the number of separate causes of action on
which the claim is based.
(b) In an action on a health care liability claim where
final judgment is rendered against a single health care
institution, the limit of civil liability for noneconomic damages
inclusive of all persons and entities for which vicarious liability
theories may apply, shall be limited to an amount not to exceed
$250,000 for each claimant.
(c) In an action on a health care liability claim where
final judgment is rendered against more than one health care
institution, the limit of civil liability for noneconomic damages
for each health care institution, inclusive of all persons and
entities for which vicarious liability theories may apply, shall be
limited to an amount not to exceed $250,000 for each claimant and
the limit of civil liability for noneconomic damages for all health
care institutions, inclusive of all persons and entities for which
vicarious liability theories may apply, shall be limited to an
amount not to exceed $500,000 for each claimant.
Sec. 74.302. ALTERNATIVE LIMITATION ON NONECONOMIC
DAMAGES. (a) In the event that Section 74.301 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:
(1) In an action on a health care liability claim where
final judgment is rendered against a physician or health care
provider other than a health care institution, the limit of civil
liability for noneconomic damages of the physician or health care
provider other than a health care institution, inclusive of all
persons and entities for which vicarious liability theories may
apply, 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 other than a health care institution against
whom the claim is asserted or the number of separate causes of
action on which the claim is based.
(2) In an action on a health care liability claim where
final judgment is rendered against a single health care
institution, the limit of civil liability for noneconomic damages
inclusive of all persons and entities for which vicarious liability
theories may apply, shall be limited to an amount not to exceed
$250,000 for each claimant.
(3) In an action on a health care liability claim where
final judgment is rendered against more than one health care
institution, the limit of civil liability for noneconomic damages
for each health care institution, inclusive of all persons and
entities for which vicarious liability theories may apply, shall be
limited to an amount not to exceed $250,000 for each claimant and
the limit of civil liability for noneconomic damages for all health
care institutions, inclusive of all persons and entities for which
vicarious liability theories may apply, shall be limited to an
amount not to exceed $500,000 for each claimant.
(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 federal law or
regulation;
(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.
Sec. 74.303. LIMITATION ON DAMAGES. (a) In a wrongful
death or survival 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
exemplary damages, shall be limited to an amount not to exceed
$500,000 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) When there is an increase or decrease in the consumer
price index with respect to the amount of that index on August 29,
1977, the liability limit prescribed in Subsection (a) 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, as published by the Bureau of Labor
Statistics of the United States Department of Labor, that measures
the average changes in prices of goods and services purchased by
urban wage earners and clerical workers' families and single
workers living alone (CPI-W: Seasonally Adjusted U.S. City Average
- All Items), between August 29, 1977, and the time at which damages
subject to such limits are awarded by final judgment or settlement.
(c) Subsection (a) does not apply to the amount of damages
awarded on a health care liability claim for the expenses of
necessary medical, hospital, and custodial care received before
judgment or required in the future for treatment of the injury.
(d) The liability of any insurer under the common law theory
of recovery commonly known in Texas as the "Stowers Doctrine" shall
not exceed the liability of the insured.
(e) In any action on a health care liability claim that is
tried by a jury in any court in this state, the following shall be
included in the court's written instructions to the jurors:
(1) "Do not consider, discuss, nor speculate whether
or not liability, if any, on the part of any party is or is not
subject to any limit under applicable law."
(2) "A finding of negligence may not be based solely on
evidence of a bad result to the claimant in question, but a bad
result may be considered by you, along with other evidence, in
determining the issue of negligence. You are the sole judges of the
weight, if any, to be given to this kind of evidence."
[Sections 74.304-74.350 reserved for expansion]
SUBCHAPTER H. PROCEDURAL PROVISIONS
Sec. 74.351. EXPERT REPORT. (a) In a health care liability
claim, a claimant shall, not later than the 120th day after the date
the claim was 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 report for each physician or health care provider
against whom a liability claim is asserted. The date for serving
the report may be extended by written agreement of the affected
parties. Each defendant physician or health care provider whose
conduct is implicated in a report must file and serve any objection
to the sufficiency of the report not later than the 21st day after
the date it was served, failing which all objections are waived.
(b) If, as to a defendant physician or health care provider,
an expert report has not been served within the period specified by
Subsection (a), the court, on the motion of the affected physician
or health care provider, shall, subject to Subsection (c), 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; and
(2) dismisses the claim with respect to the physician
or health care provider, with prejudice to the refiling of the
claim.
(c) If an expert report has not been served within the
period specified by Subsection (a) because elements of the report
are found deficient, the court may grant one 30-day extension to the
claimant in order to cure the deficiency. If the claimant does not
receive notice of the court's ruling granting the extension until
after the 120-day deadline has passed, then the 30-day extension
shall run from the date the plaintiff first received the notice.
[Subsections (d)-(h) reserved]
(i) Notwithstanding any other provision of this section, a
claimant may satisfy any requirement of this section for serving an
expert report by serving 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 of an expert report regarding any issue other than an
issue relating to liability or causation.
(k) Subject to Subsection (t), an expert report served under
this section:
(1) is not admissible in evidence by any party;
(2) shall not be used in a deposition, trial, or other
proceeding; and
(3) shall not be referred to by any party 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 good faith effort to
comply with the definition of an expert report in Subsection
(r)(6).
[Subsections (m)-(q) reserved]
(r) In this section:
(1) "Affected parties" means the claimant and the
physician or health care provider who are directly affected by an
act or agreement required or permitted by this section and does not
include other parties to an action who are not directly affected by
that particular act or agreement.
(2) "Claim" means a health care liability claim.
[(3) reserved]
(4) "Defendant" means a physician or health care
provider against whom a health care liability claim is asserted.
The term includes a third-party defendant, cross-defendant, or
counterdefendant.
(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 74.401;
(B) with respect to a person giving opinion
testimony regarding whether a health care provider departed from
accepted standards of health care, an expert qualified to testify
under the requirements of Section 74.402;
(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 such 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 or physician who is
otherwise qualified to render opinions on such 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 or physician who is
otherwise qualified to render opinions on such causal relationship
under the Texas Rules of Evidence.
(6) "Expert report" means a written report by an
expert that provides a fair summary of the expert's opinions as of
the date of the report regarding applicable standards of care, the
manner in which the care rendered by the physician or health care
provider failed to meet the standards, and the causal relationship
between that failure and the injury, harm, or damages claimed.
(s) Until a claimant has served the expert report and
curriculum vitae as required by Subsection (a), all discovery in a
health care liability claim is stayed except for the acquisition by
the claimant of information, including medical or hospital records
or other documents or tangible things, related to the patient's
health care 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), the restrictions imposed by
Subsection (k) on use of the expert report by any party are waived.
(u) Notwithstanding any other provision of this section,
after a claim is filed all claimants, collectively, may take not
more than two depositions before the expert report is served as
required by Subsection (a).
Sec. 74.352. DISCOVERY PROCEDURES. (a) In every health
care liability claim the plaintiff shall within 45 days after the
date of filing of the original petition serve on the defendant's
attorney or, if no attorney has appeared for the defendant, on the
defendant full and complete answers to the appropriate standard set
of interrogatories and full and complete responses to the
appropriate standard set of requests for production of documents
and things promulgated by the Health Care Liability Discovery
Panel.
(b) Every physician or health care provider who is a
defendant in a health care liability claim shall within 45 days
after the date on which an answer to the petition was due serve on
the plaintiff's attorney or, if the plaintiff is not represented by
an attorney, on the plaintiff full and complete answers to the
appropriate standard set of interrogatories and complete responses
to the standard set of requests for production of documents and
things promulgated by the Health Care Liability Discovery Panel.
(c) Except on motion and for good cause shown, no objection
may be asserted regarding any standard interrogatory or request for
production of documents and things, but no response shall be
required where a particular interrogatory or request is clearly
inapplicable under the circumstances of the case.
(d) Failure to file full and complete answers and responses
to standard interrogatories and requests for production of
documents and things in accordance with Subsections (a) and (b) or
the making of a groundless objection under Subsection (c) shall be
grounds for sanctions by the court in accordance with the Texas
Rules of Civil Procedure on motion of any party.
(e) The time limits imposed under Subsections (a) and (b)
may be extended by the court on the motion of a responding party for
good cause shown and shall be extended if agreed in writing between
the responding party and all opposing parties. In no event shall an
extension be for a period of more than an additional 30 days.
(f) If a party is added by an amended pleading,
intervention, or otherwise, the new party shall file full and
complete answers to the appropriate standard set of interrogatories
and full and complete responses to the standard set of requests for
production of documents and things no later than 45 days after the
date of filing of the pleading by which the party first appeared in
the action.
(g) If information or documents required to provide full and
complete answers and responses as required by this section are not
in the possession of the responding party or attorney when the
answers or responses are filed, the party shall supplement the
answers and responses in accordance with the Texas Rules of Civil
Procedure.
(h) Nothing in this section shall preclude any party from
taking additional non-duplicative discovery of any other party.
The standard sets of interrogatories provided for in this section
shall not constitute, as to each plaintiff and each physician or
health care provider who is a defendant, the first of the two sets
of interrogatories permitted under the Texas Rules of Civil
Procedure.
[Sections 74.353-74.400 reserved for expansion]
SUBCHAPTER I. EXPERT WITNESSES
Sec. 74.401. QUALIFICATIONS OF EXPERT WITNESS IN SUIT
AGAINST PHYSICIAN. (a) In a suit involving a health care liability
claim against a physician for injury to or death of a patient, a
person may qualify as an expert witness on the issue of whether the
physician departed from accepted standards of medical care only if
the person is a physician who:
(1) is practicing medicine at the time such testimony
is given or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical
care 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 medical care.
(b) For the purpose of this section, "practicing medicine"
or "medical practice" includes, but is not limited to, training
residents or students at an accredited school of medicine or
osteopathy or serving as a consulting physician to other physicians
who provide direct patient care, upon the request of such other
physicians.
(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 board certified or has other substantial
training or experience in an area of medical practice relevant to
the claim; and
(2) is actively practicing medicine in rendering
medical care services relevant to the claim.
(d) The court shall apply the criteria specified in
Subsections (a), (b), and (c) in determining whether an expert is
qualified to offer expert testimony on the issue of whether the
physician departed from accepted standards of medical care, but may
depart from those criteria if, under the circumstances, the court
determines that there is a 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) 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.
(f) This section does not prevent a physician who is a
defendant from qualifying as an expert.
(g) In this subchapter, "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.
Sec. 74.402. 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 a field of practice
that involves the same type of care or treatment as that delivered
by the defendant health care provider, if the defendant health care
provider is an individual, 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 licensing agency of one or more
states of the United States 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) 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. 74.403. QUALIFICATIONS OF EXPERT WITNESS ON CAUSATION
IN HEALTH CARE LIABILITY CLAIM. (a) Except as provided by
Subsections (b) and (c), 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 or physician 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 or physician 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.
[Sections 74.404-74.450 reserved for expansion]
SUBCHAPTER J. ARBITRATION AGREEMENTS
Sec. 74.451. ARBITRATION AGREEMENTS. (a) No physician,
professional association of physicians, or other health care
provider shall request or require a patient or prospective patient
to execute an agreement to arbitrate a health care liability claim
unless the form of agreement delivered to the patient contains a
written notice in 10-point boldface type clearly and conspicuously
stating:
UNDER TEXAS LAW, THIS AGREEMENT IS INVALID AND OF NO LEGAL EFFECT
UNLESS IT IS ALSO SIGNED BY AN ATTORNEY OF YOUR OWN CHOOSING. THIS
AGREEMENT CONTAINS A WAIVER OF IMPORTANT LEGAL RIGHTS, INCLUDING
YOUR RIGHT TO A JURY. YOU SHOULD NOT SIGN THIS AGREEMENT WITHOUT
FIRST CONSULTING WITH AN ATTORNEY.
(b) A violation of this section by a physician or
professional association of physicians constitutes a violation of
Subtitle B, Title 3, Occupations Code, and shall be subject to the
enforcement provisions and sanctions contained in that subtitle.
(c) A violation of this section by a health care provider
other than a physician shall constitute a false, misleading, or
deceptive act or practice in the conduct of trade or commerce within
the meaning of Section 17.46 of the Deceptive Trade
Practices-Consumer Protection Act (Subchapter E, Chapter 17,
Business & Commerce Code), and shall be subject to an enforcement
action by the consumer protection division under that act and
subject to the penalties and remedies contained in Section 17.47,
Business & Commerce Code, notwithstanding Section 74.004 or any
other law.
(d) Notwithstanding any other provision of this section, a
person who is found to be in violation of this section for the first
time shall be subject only to injunctive relief or other
appropriate order requiring the person to cease and desist from
such violation, and not to any other penalty or sanction.
[Sections 74.452-74.500 reserved for expansion]
SUBCHAPTER K. PAYMENT FOR FUTURE LOSSES
Sec. 74.501. 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. 74.502. SCOPE OF SUBCHAPTER. This subchapter applies
only to an action on a health care liability claim against a
physician or health care provider in which the present value of the
award of future damages, as determined by the court, equals or
exceeds $100,000.
Sec. 74.503. COURT ORDER FOR PERIODIC PAYMENTS. (a) At the
request of a defendant physician or health care provider or
claimant, the court shall order that medical, health care, or
custodial services 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) At the request of a defendant physician or health care
provider or claimant, the court may order that future damages other
than medical, health care, or custodial services awarded in a
health care liability claim be paid in whole or in part in periodic
payments rather than by a lump sum payment.
(c) The court shall make a specific finding of the dollar
amount of periodic payments that will compensate the claimant for
the future damages.
(d) 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. 74.504. 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. 74.505. 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, including an assignment
within the meaning of Section 130, Internal Revenue Code of 1986, as
amended;
(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. 74.506. 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. 74.507. 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.
SECTION 10.02. Section 84.003(1), Civil Practice and
Remedies Code, is amended to read as follows:
(1) "Charitable organization" means:
(A) any organization exempt from federal income
tax under Section 501(a) of the Internal Revenue Code of 1986 by
being listed as an exempt organization in Section 501(c)(3) or
501(c)(4) of the code, if it is a nonprofit corporation,
foundation, community chest, or fund organized and operated
exclusively for charitable, religious, prevention of cruelty to
children or animals, youth sports and youth recreational,
neighborhood crime prevention or patrol, fire protection or
prevention, emergency medical or hazardous material response
services, or educational purposes, including [excluding] private
primary or secondary schools if accredited by a member association
of the Texas Private School Accreditation Commission but excluding
fraternities, sororities, and secret societies, [alumni
associations and related on-campus organizations,] or is organized
and operated exclusively for the promotion of social welfare by
being primarily engaged in promoting the common good and general
welfare of the people in a community;
(B) any bona fide charitable, religious,
prevention of cruelty to children or animals, youth sports and
youth recreational, neighborhood crime prevention or patrol, or
educational organization, excluding fraternities, sororities, and
secret societies [alumni associations and related on-campus
organizations], or other organization organized and operated
exclusively for the promotion of social welfare by being primarily
engaged in promoting the common good and general welfare of the
people in a community, and that:
(i) is organized and operated exclusively
for one or more of the above purposes;
(ii) does not engage in activities which in
themselves are not in furtherance of the purpose or purposes;
(iii) does not directly or indirectly
participate or intervene in any political campaign on behalf of or
in opposition to any candidate for public office;
(iv) dedicates its assets to achieving the
stated purpose or purposes of the organization;
(v) does not allow any part of its net
assets on dissolution of the organization to inure to the benefit of
any group, shareholder, or individual; and
(vi) normally receives more than one-third
of its support in any year from private or public gifts, grants,
contributions, or membership fees;
(C) a homeowners association as defined by
Section 528(c) of the Internal Revenue Code of 1986 or which is
exempt from federal income tax under Section 501(a) of the Internal
Revenue Code of 1986 by being listed as an exempt organization in
Section 501(c)(4) of the code; or
(D) a volunteer center, as that term is defined
by Section 411.126, Government Code.
SECTION 10.03. Section 84.003, Civil Practice and Remedies
Code, is amended by adding Subdivision (6) to read as follows:
(6) "Hospital system" means a system of hospitals and
other health care providers located in this state that are under the
common governance or control of a corporate parent.
SECTION 10.04. Section 84.003, Civil Practice and Remedies
Code, is amended by adding Subdivision (7) to read as follows:
(7) "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 10.05. Section 84.004, Civil Practice and Remedies
Code, is amended by adding Subsection (f) to read as follows:
(f) Subsection (c) applies even if:
(1) the patient is incapacitated due to illness or
injury and cannot sign the acknowledgment statement required by
that subsection; or
(2) the patient is a minor or is otherwise legally
incompetent and the person responsible for the patient is not
reasonably available to sign the acknowledgment statement required
by that subsection.
SECTION 10.06. 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. (a)
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.
(b) Subsection (a) applies even if:
(1) the patient is incapacitated due to illness or
injury and cannot sign the acknowledgment statement required by
that subsection; or
(2) the patient is a minor or is otherwise legally
incompetent and the person responsible for the patient is not
reasonably available to sign the acknowledgment statement required
by that subsection.
SECTION 10.07. Section 242.0372, Health and Safety Code, is
amended by adding Subsection (f) to read as follows:
(f) An institution is not required to comply with this
section before September 1, 2005. This subsection expires
September 2, 2005.
SECTION 10.08. 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 10.09. The Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes) is repealed.
SECTION 10.10. Unless otherwise removed as provided by law,
a member of the Texas Medical Disclosure Panel serving on the
effective date of this Act continues to serve for the term to which
the member was appointed.
SECTION 10.11. (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;
(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, 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, will have a positive 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 article 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.
ARTICLE 11. CLAIMS AGAINST EMPLOYEES OR VOLUNTEERS OF A
GOVERNMENTAL UNIT
SECTION 11.01. Sections 108.002(a) and (b), Civil Practice
and Remedies Code, are amended to read as follows:
(a) Except in an action arising under the constitution or
laws of the United States, a public servant [, other than a provider
of health care as that term is defined in Section 108.002(c),] is
not personally liable for damages in excess of $100,000 arising
from personal injury, death, or deprivation of a right, privilege,
or immunity if:
(1) the damages are the result of an act or omission by
the public servant in the course and scope of the public servant's
office, employment, or contractual performance for or service on
behalf of a state agency, institution, department, or local
government; and
(2) for the amount not in excess of $100,000, the
public servant is covered:
(A) by the state's obligation to indemnify under
Chapter 104;
(B) by a local government's authorization to
indemnify under Chapter 102;
(C) by liability or errors and omissions
insurance; or
(D) by liability or errors and omissions coverage
under an interlocal agreement.
(b) Except in an action arising under the constitution or
laws of the United States, a public servant [, other than a provider
of health care as that term is defined in Section 108.002(c),] is
not liable for damages in excess of $100,000 for property damage if:
(1) the damages are the result of an act or omission by
the public servant in the course and scope of the public servant's
office, employment, or contractual performance for or service on
behalf of a state agency, institution, department, or local
government; and
(2) for the amount not in excess of $100,000, the
public servant is covered:
(A) by the state's obligation to indemnify under
Chapter 104;
(B) by a local government's authorization to
indemnify under Chapter 102;
(C) by liability or errors and omissions
insurance; or
(D) by liability or errors and omissions coverage
under an interlocal agreement.
SECTION 11.02. Chapter 261, Health and Safety Code, is
amended by adding Subchapter C to read as follows:
SUBCHAPTER C. LIABILITY OF NONPROFIT MANAGEMENT CONTRACTOR
Sec. 261.051. DEFINITION. In this subchapter, "municipal
hospital management contractor" means a nonprofit corporation,
partnership, or sole proprietorship that manages or operates a
hospital or provides services under a contract with a municipality.
Sec. 261.052. LIABILITY OF A MUNICIPAL HOSPITAL MANAGEMENT
CONTRACTOR. A municipal hospital management contractor in its
management or operation of a hospital under a contract with a
municipality is considered a governmental unit for purposes of
Chapters 101, 102, and 108, Civil Practice and Remedies Code, and
any employee of the contractor is, while performing services under
the contract for the benefit of the hospital, an employee of the
municipality for the purposes of Chapters 101, 102, and 108, Civil
Practice and Remedies Code.
SECTION 11.03. Section 285.071, Health and Safety Code, is
amended to read as follows:
Sec. 285.071. DEFINITION. In this chapter, "hospital
district management contractor" means a nonprofit corporation,
partnership, or sole proprietorship that manages or operates a
hospital or provides services [as a part of a rural health network
as defined under 42 U.S.C. Section 1395i-4(g)] under contract with
a hospital district that was created by general or special law [and
that has a population under 50,000].
SECTION 11.04. Section 285.072, Health and Safety Code, is
amended to read as follows:
Sec. 285.072. LIABILITY OF A HOSPITAL DISTRICT MANAGEMENT
CONTRACTOR. A hospital district management contractor in its
management or operation of a hospital under a contract with a
hospital district is considered a governmental unit for purposes of
Chapters 101, 102, and 108, Civil Practice and Remedies Code, and
any employee of the contractor is [are], while performing services
under the contract for the benefit of the hospital, an employee
[employees] of the hospital district for the purposes of Chapters
101, [and] 102, and 108, Civil Practice and Remedies Code.
SECTION 11.05. Section 101.106, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 101.106. ELECTION OF REMEDIES. (a) The filing of a
suit under this chapter against a governmental unit constitutes an
irrevocable election by the plaintiff and immediately and forever
bars any suit or recovery by the plaintiff against any individual
employee of the governmental unit regarding the same subject
matter.
(b) The filing of a suit against any employee of a
governmental unit constitutes an irrevocable election by the
plaintiff and immediately and forever bars any suit or recovery by
the plaintiff against the governmental unit regarding the same
subject matter unless the governmental unit consents.
(c) The settlement of a claim arising under this chapter
shall immediately and forever bar the claimant from any suit
against or recovery from any employee of the same governmental unit
regarding the same subject matter.
(d) A judgment against an employee of a governmental unit
shall immediately and forever bar the party obtaining the judgment
from any suit against or recovery from the governmental unit.
(e) If a suit is filed under this chapter against both a
governmental unit and any of its employees, the employees shall
immediately be dismissed on the filing of a motion by the
governmental unit.
(f) If a suit is filed against an employee of a governmental
unit based on conduct within the general scope of that employee's
employment and if it could have been brought under this chapter
against the governmental unit, the suit is considered to be against
the employee in the employee's official capacity only. On the
employee's motion, the suit against the employee shall be dismissed
unless the plaintiff files amended pleadings dismissing the
employee and naming the governmental unit as defendant on or before
the 30th day after the date the motion is filed. [EMPLOYEES NOT
LIABLE AFTER SETTLEMENT OR JUDGMENT. A judgment in an action or a
settlement of a claim under this chapter bars any action involving
the same subject matter by the claimant against the employee of the
governmental unit whose act or omission gave rise to the claim.]
SECTION 11.06. Section 108.001, Civil Practice and Remedies
Code, is amended by adding Subdivision (3) to read as follows:
(3) "Public servant" includes a licensed physician who
provides emergency or postemergency stabilization services to
patients in a hospital owned or operated by a unit of local
government.
SECTION 11.07. Section 108.002(c), Civil Practice and
Remedies Code, is repealed.
ARTICLE 12. RESERVED
ARTICLE 13. DAMAGES
SECTION 13.01. The heading to Chapter 41, Civil Practice
and Remedies Code, is amended to read as follows:
CHAPTER 41. [EXEMPLARY] DAMAGES
SECTION 13.02. Section 41.001, Civil Practice and Remedies
Code, is amended by amending Subdivisions (1), (3), (4), (5), and
(7) and adding Subdivisions (8)-(13) to read as follows:
(1) "Claimant" means a party, including a plaintiff,
counterclaimant, cross-claimant, or third-party plaintiff, seeking
recovery of [exemplary] damages. In a cause of action in which a
party seeks recovery of [exemplary] damages related to injury to
another person, damage to the property of another person, death of
another person, or other harm to another person, "claimant"
includes both that other person and the party seeking recovery of
[exemplary] damages.
(3) "Defendant" means a party, including a
counterdefendant, cross-defendant, or third-party defendant, from
whom a claimant seeks relief [with respect to exemplary damages].
(4) "Economic damages" means compensatory damages
intended to compensate a claimant for actual economic or [for]
pecuniary loss; the term does not include exemplary damages or
noneconomic damages [for physical pain and mental anguish, loss of
consortium, disfigurement, physical impairment, or loss of
companionship and society].
(5) "Exemplary damages" means any damages awarded as a
penalty or by way of punishment but not for compensatory purposes.
Exemplary damages are neither economic nor noneconomic damages.
"Exemplary damages" includes punitive damages.
(7) "Malice" means[:
[(A)] a specific intent by the defendant to cause
substantial injury or harm to the claimant[; or
[(B) an act or omission:
[(i) which when viewed objectively from the
standpoint of the actor at the time of its occurrence involves an
extreme degree of risk, considering the probability and magnitude
of the potential harm to others; and
[(ii) of which the actor has actual,
subjective awareness of the risk involved, but nevertheless
proceeds with conscious indifference to the rights, safety, or
welfare of others].
(8) "Compensatory damages" means economic and
noneconomic damages. The term does not include exemplary damages.
(9) "Future damages" means damages that are incurred
after the date of the judgment. Future damages do not include
exemplary damages.
(10) "Future loss of earnings" means a pecuniary loss
incurred after the date of the judgment, including:
(A) loss of income, wages, or earning capacity;
and
(B) loss of inheritance.
(11) "Gross negligence" means an act or omission:
(A) which when viewed objectively from the
standpoint of the actor at the time of its occurrence involves an
extreme degree of risk, considering the probability and magnitude
of the potential harm to others; and
(B) of which the actor has actual, subjective
awareness of the risk involved, but nevertheless proceeds with
conscious indifference to the rights, safety, or welfare of others.
(12) "Noneconomic damages" means damages awarded for
the purpose of compensating a claimant for physical pain and
suffering, mental or emotional pain or anguish, loss of consortium,
disfigurement, physical impairment, loss of companionship and
society, inconvenience, loss of enjoyment of life, injury to
reputation, and all other nonpecuniary losses of any kind other
than exemplary damages.
(13) "Periodic payments" means the payment of money or
its equivalent to the recipient of future damages at defined
intervals.
SECTION 13.03. Sections 41.002(a) and (b), Civil Practice
and Remedies Code, are amended to read as follows:
(a) This chapter applies to any action in which a claimant
seeks [exemplary] damages relating to a cause of action.
(b) This chapter establishes the maximum [exemplary]
damages that may be awarded in an action subject to this chapter,
including an action for which [exemplary] damages are awarded under
another law of this state. This chapter does not apply to the
extent another law establishes a lower maximum amount of
[exemplary] damages for a particular claim.
SECTION 13.04. Section 41.003, Civil Practice and Remedies
Code, is amended by amending Subsection (a) and adding Subsections
(d) and (e) to read as follows:
(a) Except as provided by Subsection (c), exemplary damages
may be awarded only if the claimant proves by clear and convincing
evidence that the harm with respect to which the claimant seeks
recovery of exemplary damages results from:
(1) fraud;
(2) malice; or
(3) gross negligence [wilful act or omission or gross
neglect in wrongful death actions brought by or on behalf of a
surviving spouse or heirs of the decedent's body, under a statute
enacted pursuant to Section 26, Article XVI, Texas Constitution.
In such cases, the definition of "gross neglect" in the instruction
submitted to the jury shall be the definition stated in Section
41.001(7)(B)].
(d) Exemplary damages may be awarded only if the jury was
unanimous in regard to finding liability for and the amount of
exemplary damages.
(e) In all cases where the issue of exemplary damages is
submitted to the jury, the following instruction shall be included
in the charge of the court:
"You are instructed that, in order for you to find exemplary
damages, your answer to the question regarding the amount of such
damages must be unanimous."
SECTION 13.05. Section 41.004(b), Civil Practice and
Remedies Code, is amended to read as follows:
(b) [A claimant may recover exemplary damages, even if only
nominal damages are awarded, if the claimant establishes by clear
and convincing evidence that the harm with respect to which the
claimant seeks recovery of exemplary damages results from malice as
defined in Section 41.001(7)(A).] Exemplary damages may not be
awarded to a claimant who elects to have his recovery multiplied
under another statute.
SECTION 13.06. Section 41.008, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 41.008. LIMITATION ON AMOUNT OF RECOVERY. (a) In an
action in which a claimant seeks recovery of [exemplary] damages,
the trier of fact shall determine the amount of economic damages
separately from the amount of other compensatory damages.
(b) Exemplary damages awarded against a defendant may not
exceed an amount equal to the greater of:
(1)(A) two times the amount of economic damages; plus
(B) an amount equal to any noneconomic damages
found by the jury, not to exceed $750,000; or
(2) $200,000.
(c) This section [Subsection (b)] does not apply to a cause
of action against a defendant from whom a plaintiff seeks recovery
of exemplary damages based on conduct described as a felony in the
following sections of the Penal Code if, except for Sections 49.07
and 49.08, the conduct was committed knowingly or intentionally:
(1) Section 19.02 (murder);
(2) Section 19.03 (capital murder);
(3) Section 20.04 (aggravated kidnapping);
(4) Section 22.02 (aggravated assault);
(5) Section 22.011 (sexual assault);
(6) Section 22.021 (aggravated sexual assault);
(7) Section 22.04 (injury to a child, elderly
individual, or disabled individual, but not if the conduct occurred
while providing health care as defined by Section 74.001);
(8) Section 32.21 (forgery);
(9) Section 32.43 (commercial bribery);
(10) Section 32.45 (misapplication of fiduciary
property or property of financial institution);
(11) Section 32.46 (securing execution of document by
deception);
(12) Section 32.47 (fraudulent destruction, removal,
or concealment of writing);
(13) Chapter 31 (theft) the punishment level for which
is a felony of the third degree or higher;
(14) Section 49.07 (intoxication assault); or
(15) Section 49.08 (intoxication manslaughter).
(d) In this section, "intentionally" and "knowingly" have
the same meanings assigned those terms in Sections 6.03(a) and (b),
Penal Code.
(e) The provisions of this section [Subsections (a) and (b)]
may not be made known to a jury by any means, including voir dire,
introduction into evidence, argument, or instruction.
(f) This section [Subsection (b)] does not apply to a cause
of action for damages arising from the manufacture of
methamphetamine as described by Chapter 99.
SECTION 13.07. Section 41.010(b), Civil Practice and
Remedies Code, is amended to read as follows:
(b) Subject to Section 41.008, the [The] determination of
whether to award exemplary damages and the amount of exemplary
damages to be awarded is within the discretion of the trier of fact.
SECTION 13.08. Chapter 41, Civil Practice and Remedies
Code, is amended by adding Section 41.0105 to read as follows:
Sec. 41.0105. EVIDENCE RELATING TO AMOUNT OF ECONOMIC
DAMAGES. In addition to any other limitation under law, recovery of
medical or health care expenses incurred is limited to the amount
actually paid or incurred by or on behalf of the claimant.
SECTION 13.09. Chapter 18, Civil Practice and Remedies
Code, is amended by adding Subchapter D to read as follows:
SUBCHAPTER D. CERTAIN LOSSES
Sec. 18.091. PROOF OF CERTAIN LOSSES; JURY INSTRUCTION.
(a) Notwithstanding any other law, 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
loss after reduction for income tax payments or unpaid tax
liability pursuant to any federal income tax law.
(b) 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 as
to whether any recovery for compensatory damages sought by the
claimant is subject to federal or state income taxes.
ARTICLE 14. RESERVED
ARTICLE 15. SCHOOL EMPLOYEES
SECTION 15.01. Subchapter B, Chapter 22, Education Code, is
amended by amending Section 22.051 and adding Sections 22.0511,
22.0513, 22.0514, 22.0516, and 22.0517 to read as follows:
Sec. 22.051. DEFINITION. In this subchapter, "professional
employee of a school district" includes:
(1) a superintendent, principal, teacher, including a
substitute teacher, supervisor, social worker, counselor, nurse,
and teacher's aide employed by a school district;
(2) a teacher employed by a company that contracts
with a school district to provide the teacher's services to the
district;
(3) a student in an education preparation program
participating in a field experience or internship;
(4) a school bus driver certified in accordance with
standards and qualifications adopted by the Department of Public
Safety of the State of Texas;
(5) a member of the board of trustees of an independent
school district; and
(6) any other person employed by a school district
whose employment requires certification and the exercise of
discretion.
Sec. 22.0511. IMMUNITY FROM LIABILITY [FOR PROFESSIONAL
EMPLOYEES]. (a) A professional employee of a school district is
not personally liable for any act that is incident to or within the
scope of the duties of the employee's position of employment and
that involves the exercise of judgment or discretion on the part of
the employee, except in circumstances in which a professional
employee uses excessive force in the discipline of students or
negligence resulting in bodily injury to students.
(b) This section does not apply to the operation, use, or
maintenance of any motor vehicle.
(c) In addition to the immunity provided under this section
and under other provisions of state law, an individual is entitled
to any immunity and any other protections afforded under the Paul D.
Coverdell Teacher Protection Act of 2001 (20 U.S.C. Section 6731 et
seq.), as amended. Nothing in this subsection shall be construed to
limit or abridge any immunity or protection afforded an individual
under state law. For purposes of this subsection, "individual"
includes a person who provides services to private schools, to the
extent provided by federal law [this section, "professional
employee" includes:
[(1) a superintendent, principal, teacher,
supervisor, social worker, counselor, nurse, and teacher's aide;
[(2) a student in an education preparation program
participating in a field experience or internship;
[(3) a school bus driver certified in accordance with
standards and qualifications adopted by the Department of Public
Safety; and
[(4) any other person whose employment requires
certification and the exercise of discretion].
Sec. 22.0513. NOTICE OF CLAIM. (a) Not later than the 90th
day before the date a person files a suit against a professional
employee of a school district, the person must give written notice
to the employee of the claim, reasonably describing the incident
from which the claim arose.
(b) A professional employee of a school district against
whom a suit is pending who does not receive written notice, as
required by Subsection (a), may file a plea in abatement not later
than the 30th day after the date the person files an original answer
in the court in which the suit is pending.
(c) The court shall abate the suit if the court, after a
hearing, finds that the person is entitled to an abatement because
notice was not provided as required by this section.
(d) An abatement under Subsection (c) continues until the
90th day after the date that written notice is given to the
professional employee of a school district as provided by
Subsection (a).
Sec. 22.0514. EXHAUSTION OF REMEDIES. A person may not file
suit against a professional employee of a school district unless
the person has exhausted the remedies provided by the school
district for resolving the complaint.
Sec. 22.0516. ALTERNATIVE DISPUTE RESOLUTION. A court in
which a judicial proceeding is being brought against a professional
employee of a school district may refer the case to an alternative
dispute resolution procedure as described by Chapter 154, Civil
Practice and Remedies Code.
Sec. 22.0517. RECOVERY OF ATTORNEY'S FEES IN ACTION AGAINST
PROFESSIONAL EMPLOYEE. In an action against a professional
employee of a school district involving an act that is incidental to
or within the scope of duties of the employee's position of
employment and brought against the employee in the employee's
individual capacity, the employee is entitled to recover attorney's
fees and court costs from the plaintiff if the employee is found
immune from liability under this subchapter.
SECTION 15.02. Section 22.053(a), Education Code, is
amended to read as follows:
(a) A volunteer who is serving as a direct service volunteer
of a school district is immune from civil liability to the same
extent as a professional employee of a school district under
Section 22.0511 [22.051].
SECTION 15.03. Section 30.024(c), Education Code, is
amended to read as follows:
(c) In addition to any other federal and state statutes
limiting the liability of employees at the school, Sections 22.0511
[22.051], 22.052, and 22.053, respectively, apply to professional
employees and volunteers of the school.
SECTION 15.04. Section 30.055(c), Education Code, is
amended to read as follows:
(c) In addition to any other federal and state statutes
limiting the liability of employees at the school, Sections 22.0511
[22.051], 22.052, and 22.053, respectively, apply to professional
employees and volunteers of the school.
SECTION 15.05. Section 105.301(e), Education Code, is
amended to read as follows:
(e) The academy is not subject to the provisions of this
code, or to the rules of the Texas Education Agency, regulating
public schools, except that:
(1) professional employees of the academy are entitled
to the limited liability of an employee under Section 22.0511
[22.051] or 22.052;
(2) a student's attendance at the academy satisfies
compulsory school attendance requirements; and
(3) for each student enrolled, the academy is entitled
to allotments from the foundation school program under Chapter 42
as if the academy were a school district, except that the academy
has a local share applied that is equivalent to the local fund
assignment of the Denton Independent School District.
SECTION 15.06. The change in law made by this article
applies only to a suit for damages or a school employee disciplinary
proceeding involving conduct that occurs on or after the effective
date of this Act. A suit for damages or a school employee
disciplinary proceeding involving conduct that occurs before the
effective date of this Act is governed by the law in effect on the
date the conduct occurs, and the former law is continued in effect
for that purpose.
ARTICLE 16. ADMISSIBILITY OF CERTAIN EVIDENCE IN CIVIL ACTION
SECTION 16.01. Subchapter B, Chapter 32, Human Resources
Code, is amended by adding Section 32.060 to read as follows:
Sec. 32.060. ADMISSIBILITY OF CERTAIN EVIDENCE RELATING TO
NURSING INSTITUTIONS. (a) The following are not admissible as
evidence in a civil action:
(1) any finding by the department that an institution
licensed under Chapter 242, Health and Safety Code, has violated a
standard for participation in the medical assistance program under
this chapter; or
(2) the fact of the assessment of a monetary penalty
against an institution under Section 32.021 or the payment of the
penalty by an institution.
(b) This section does not apply in an enforcement action in
which the state or an agency or political subdivision of the state
is a party.
(c) Notwithstanding any other provision of this section,
evidence described by Subsection (a) is admissible as evidence in a
civil action only if:
(1) the evidence relates to a material violation of
this chapter or a rule adopted under this chapter or assessment of a
monetary penalty with respect to:
(A) the particular incident and the particular
individual whose personal injury is the basis of the claim being
brought in the civil action; or
(B) a finding by the department that directly
involves substantially similar conduct that occurred at the
institution within a period of one year before the particular
incident that is the basis of the claim being brought in the civil
action; and
(2) the evidence of a material violation has been
affirmed by the entry of a final adjudicated and unappealable order
of the department after formal appeal; and
(3) the record is otherwise admissible under the Texas
Rules of Evidence.
SECTION 16.02. Subchapter A, Chapter 242, Health and Safety
Code, is amended by adding Section 242.017 to read as follows:
Sec. 242.017. ADMISSIBILITY OF CERTAIN EVIDENCE IN CIVIL
ACTIONS. (a) The following are not admissible as evidence in a
civil action:
(1) any finding by the department that an institution
has violated this chapter or a rule adopted under this chapter; or
(2) the fact of the assessment of a penalty against an
institution under this chapter or the payment of the penalty by an
institution.
(b) This section does not apply in an enforcement action in
which the state or an agency or political subdivision of the state
is a party.
(c) Notwithstanding any other provision of this section,
evidence described by Subsection (a) is admissible as evidence in a
civil action only if:
(1) the evidence relates to a material violation of
this chapter or a rule adopted under this chapter or assessment of a
monetary penalty with respect to:
(A) the particular incident and the particular
individual whose personal injury is the basis of the claim being
brought in the civil action; or
(B) a finding by the department that directly
involves substantially similar conduct that occurred at the
institution within a period of one year before the particular
incident that is the basis of the claim being brought in the civil
action; and
(2) the evidence of a material violation has been
affirmed by the entry of a final adjudicated and unappealable order
of the department after formal appeal; and
(3) the record is otherwise admissible under the Texas
Rules of Evidence.
SECTION 16.03. The following laws are repealed:
(1) Sections 32.021(i) and (k), Human Resources Code;
and
(2) Section 242.050, Health and Safety Code, as added
by Chapter 1284, Acts of the 77th Legislature, Regular Session,
2001.
ARTICLE 17. LIMITATIONS IN CIVIL ACTIONS OF LIABILITIES
RELATING TO CERTAIN MERGERS OR CONSOLIDATIONS
SECTION 17.01. Title 6, Civil Practice and Remedies Code,
is amended by adding Chapter 149 to read as follows:
CHAPTER 149. LIMITATIONS IN CIVIL ACTIONS OF LIABILITIES RELATING
TO CERTAIN MERGERS OR CONSOLIDATIONS
Sec. 149.001. DEFINITIONS. In this chapter:
(1) "Asbestos claim" means any claim, wherever or
whenever made, for damages, losses, indemnification, contribution,
or other relief arising out of, based on, or in any way related to
asbestos, including:
(A) property damage caused by the installation,
presence, or removal of asbestos;
(B) the health effects of exposure to asbestos,
including any claim for:
(i) personal injury or death;
(ii) mental or emotional injury;
(iii) risk of disease or other injury; or
(iv) the costs of medical monitoring or
surveillance; and
(C) any claim made by or on behalf of any person
exposed to asbestos, or a representative, spouse, parent, child, or
other relative of the person.
(2) "Corporation" means a corporation for profit,
including:
(A) a domestic corporation organized under the
laws of this state; or
(B) a foreign corporation organized under laws
other than the laws of this state.
(3) "Successor asbestos-related liabilities" means
any liabilities, whether known or unknown, asserted or unasserted,
absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, or due or to become due, that are related in any way
to asbestos claims that were assumed or incurred by a corporation as
a result of or in connection with a merger or consolidation, or the
plan of merger or consolidation related to the merger or
consolidation, with or into another corporation or that are related
in any way to asbestos claims based on the exercise of control or
the ownership of stock of the corporation before the merger or
consolidation. The term includes liabilities that, after the time
of the merger or consolidation for which the fair market value of
total gross assets is determined under Section 149.004, were or are
paid or otherwise discharged, or committed to be paid or otherwise
discharged, by or on behalf of the corporation, or by a successor of
the corporation, or by or on behalf of a transferor, in connection
with settlements, judgments, or other discharges in this state or
another jurisdiction.
(4) "Successor" means a corporation that assumes or
incurs, or has assumed or incurred, successor asbestos-related
liabilities.
(5) "Transferor" means a corporation from which
successor asbestos-related liabilities are or were assumed or
incurred.
Sec. 149.002. APPLICABILITY. (a) The limitations in
Section 149.003 shall apply to a domestic corporation or a foreign
corporation that has had a certificate of authority to transact
business in this state or has done business in this state and that
is a successor which became a successor prior to May 13, 1968, or
which is any of that successor corporation's successors, but in the
latter case only to the extent of the limitation of liability
applied under Section 149.003(b) and subject also to the
limitations found in this chapter, including those in Subsection
(b).
(b) The limitations in Section 149.003 shall not apply to:
(1) workers' compensation benefits paid by or on
behalf of an employer to an employee under the Texas Workers'
Compensation Act, Subtitle A, Title 5, Labor Code, or a comparable
workers' compensation law of another jurisdiction;
(2) any claim against a corporation that does not
constitute a successor asbestos-related liability;
(3) an insurance corporation, as that term is used in
the Insurance Code;
(4) any obligations under the National Labor Relations
Act (29 U.S.C. Section 151 et seq.), as amended, or under any
collective bargaining agreement;
(5) a successor that, after a merger or consolidation,
continued in the business of mining asbestos or in the business of
selling or distributing asbestos fibers or in the business of
manufacturing, distributing, removing, or installing
asbestos-containing products which were the same or substantially
the same as those products previously manufactured, distributed,
removed, or installed by the transferor;
(6) a contractual obligation existing as of the
effective date of this chapter that was entered into with claimants
or potential claimants or their counsel and which resolves asbestos
claims or potential asbestos claims;
(7) any claim made against the estate of a debtor in a
bankruptcy proceeding commenced prior to April 1, 2003, under the
United States Bankruptcy Code (11 U.S.C. Section 101 et seq.) by or
against such debtor, or against a bankruptcy trust established
under 11 U.S.C. Section 524(g) or similar provisions of the United
States Code in such a bankruptcy proceeding commenced prior to such
date; or
(8) a successor asbestos-related liability arising
from a claim brought under Chapter 95, a common law claim for
premises liability, or a cause of action for premises liability, as
applicable, but only if the successor owned or controlled the
premise or premises at issue after the merger or consolidation.
Sec. 149.003. LIMITATIONS ON SUCCESSOR ASBESTOS-RELATED
LIABILITIES. (a) Except as further limited in Subsection (b), the
cumulative successor asbestos-related liabilities of a corporation
are limited to the fair market value of the total gross assets of
the transferor determined as of the time of the merger or
consolidation. The corporation does not have any responsibility
for successor asbestos-related liabilities in excess of this
limitation.
(b) If the transferor had assumed or incurred successor
asbestos-related liabilities in connection with a prior merger or
consolidation with a prior transferor, then the fair market value
of the total assets of the prior transferor, determined as of the
time of such earlier merger or consolidation, shall be substituted
for the limitation set forth in Subsection (a) for purposes of
determining the limitation of liability of a corporation.
Sec. 149.004. ESTABLISHING FAIR MARKET VALUE OF TOTAL GROSS
ASSETS. (a) A corporation may establish the fair market value of
total gross assets for the purpose of the limitations under Section
149.003 through any method reasonable under the circumstances,
including:
(1) by reference to the going concern value of the
assets or to the purchase price attributable to or paid for the
assets in an arm's-length transaction; or
(2) in the absence of other readily available
information from which fair market value can be determined, by
reference to the value of the assets recorded on a balance sheet.
(b) Total gross assets include intangible assets.
(c) Total gross assets include the aggregate coverage under
any applicable liability insurance that was issued to the
transferor whose assets are being valued for purposes of this
section and which insurance has been collected or is collectable to
cover successor asbestos-related liabilities (except compensation
for liabilities arising from workers' exposure to asbestos solely
during the course of their employment by the transferor). A
settlement of a dispute concerning such insurance coverage entered
into by a transferor or successor with the insurers of the
transferor 10 years or more before the enactment of this chapter
shall be determinative of the aggregate coverage of such liability
insurance to be included in the calculation of the transferor's
total gross assets.
(d) The fair market value of total gross assets shall
reflect no deduction for any liabilities arising from any asbestos
claim.
Sec. 149.005. ADJUSTMENT. (a) Except as provided in
Subsections (b), (c), and (d), the fair market value of total gross
assets at the time of a merger or consolidation increases annually
at a rate equal to the sum of:
(1) the prime rate as listed in the first edition of
the Wall Street Journal published for each calendar year since the
merger or consolidation; and
(2) one percent.
(b) The rate in Subsection (a) is not compounded.
(c) The adjustment of fair market value of total gross
assets continues as provided under Subsection (a) until the date
the adjusted value is exceeded by the cumulative amounts of
successor asbestos-related liabilities paid or committed to be paid
by or on behalf of the corporation or a predecessor, or by or on
behalf of a transferor, after the time of the merger or
consolidation for which the fair market value of total gross assets
is determined.
(d) No adjustment of the fair market value of total gross
assets shall be applied to any liability insurance otherwise
included in the definition of total gross assets by Section
149.004(c).
Sec. 149.006. SCOPE OF CHAPTER. The courts in this state
shall apply, to the fullest extent permissible under the United
States Constitution, this state's substantive law, including the
limitation under this chapter, to the issue of successor
asbestos-related liabilities.
SECTION 17.02. Chapter 149, Civil Practice and Remedies
Code, as added by this article, applies to all actions:
(1) commenced on or after the effective date of this
Act; or
(2) pending on that effective date and in which the
trial, or any new trial or retrial following motion, appeal, or
otherwise, begins on or after that effective date.
ARTICLE 18. CHARITABLE IMMUNITY AND LIABILITY
SECTION 18.01. Sections 84.004(a) and (c), Civil Practice
and Remedies Code, are amended to read as follows:
(a) Except as provided by Subsection (d) and Section 84.007,
a volunteer [who is serving as an officer, director, or trustee] of
a charitable organization is immune from civil liability for any
act or omission resulting in death, damage, or injury if the
volunteer was acting in the course and scope of the volunteer's
[his] duties or functions, including as an officer, director, or
trustee within the organization.
(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 [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 18.02. Section 84.007(a), Civil Practice and
Remedies Code, is amended to read as follows:
(a) This chapter does not apply to an act or omission that is
intentional, wilfully [or wantonly] negligent, or done with
conscious indifference or reckless disregard for the safety of
others.
SECTION 18.03. The following provisions of the Civil
Practice and Remedies Code are repealed:
(1) Section 84.003(4); and
(2) Section 84.004(b).
ARTICLE 19. LIABILITY OF VOLUNTEER FIRE DEPARTMENTS
AND VOLUNTEER FIRE FIGHTERS
SECTION 19.01. (a) The legislature finds that:
(1) 80 percent of the area of this state is currently
protected by volunteer fire departments;
(2) concern regarding personal liability arising out
of services rendered by volunteer fire fighters on behalf of
volunteer fire departments deters individuals from offering their
services as volunteer fire fighters;
(3) the diminishing number of volunteer fire fighters
leads to increased costs and less service to areas of this state
that are served by volunteer fire departments; and
(4) it is in the public interest of the citizens of
this state to encourage the continued level of service provided by
volunteer fire departments.
(b) The purpose of this article is to reduce the exposure to
liability of:
(1) a volunteer fire department while involved in or
providing an emergency response; and
(2) a volunteer fire fighter while acting as a member
of a volunteer fire department.
SECTION 19.02. Chapter 78, Civil Practice and Remedies
Code, is amended by adding Subchapter C to read as follows:
SUBCHAPTER C. FIRE-FIGHTING SERVICES
Sec. 78.101. DEFINITIONS. In this subchapter:
(1) "Emergency response" means a response involving
fire protection or prevention, rescue, emergency medical, or
hazardous material response services.
(2) "Volunteer fire department" means a nonprofit
organization that is:
(A) operated by its members;
(B) exempt from the state sales tax under Section
151.310, Tax Code, or the state franchise tax under Section
171.083, Tax Code; and
(C) organized to provide an emergency response.
(3) "Volunteer fire fighter" means a member of a
volunteer fire department.
Sec. 78.102. APPLICABILITY OF SUBCHAPTER: EMERGENCY
RESPONSE. This subchapter applies only to damages for personal
injury, death, or property damage, other than property damage to
which Subchapter A applies, arising from an error or omission of:
(1) a volunteer fire department while involved in or
providing an emergency response; or
(2) a volunteer fire fighter while involved in or
providing an emergency response as a member of a volunteer fire
department.
Sec. 78.103. LIABILITY OF VOLUNTEER FIRE DEPARTMENT. A
volunteer fire department is:
(1) liable for damages described by Section 78.102
only to the extent that a county providing the same or similar
services would be liable under Chapter 101; and
(2) entitled to the exclusions, exceptions, and
defenses applicable to a county under Chapter 101 and other
statutory or common law.
Sec. 78.104. LIABILITY OF VOLUNTEER FIRE FIGHTER. A
volunteer fire fighter is:
(1) liable for damages described by Section 78.102
only to the extent that an employee providing the same or similar
services for a county would be liable; and
(2) entitled to the exclusions, exceptions,
immunities, and defenses applicable to an employee of a county
under Chapter 101 and other statutory or common law.
ARTICLE 20. DESIGN PROFESSIONALS
SECTION 20.01. Title 6, Civil Practice and Remedies Code,
is amended by adding Chapter 150 to read as follows:
CHAPTER 150. DESIGN PROFESSIONALS
Sec. 150.001. DEFINITION. In this chapter, "design
professional" means a registered architect or licensed
professional engineer.
Sec. 150.002. CERTIFICATE OF MERIT. (a) In any action for
damages alleging professional negligence by a design professional,
the plaintiff shall be required to file with the complaint an
affidavit of a third-party registered architect or licensed
professional engineer competent to testify and practicing in the
same area of practice as the defendant, which affidavit shall set
forth specifically at least one negligent act, error, or omission
claimed to exist and the factual basis for each such claim. The
third-party professional engineer or registered architect shall be
licensed in this state and actively engaged in the practice of
architecture or engineering.
(b) The contemporaneous filing requirement of Subsection
(a) shall not apply to any case in which the period of limitation
will expire within 10 days of the date of filing and, because of
such time constraints, the plaintiff has alleged that an affidavit
of a third-party registered architect or professional engineer
could not be prepared. In such cases, the plaintiff shall have 30
days after the filing of the complaint to supplement the pleadings
with the affidavit. The trial court may, on motion, after hearing
and for good cause, extend such time as it shall determine justice
requires.
(c) The defendant shall not be required to file an answer to
the complaint and affidavit until 30 days after the filing of such
affidavit.
(d) The plaintiff's failure to file the affidavit in
accordance with Subsection (a) or (b) may result in dismissal with
prejudice of the complaint against the defendant.
(e) This statute shall not be construed to extend any
applicable period of limitation or repose.
ARTICLE 21. LIMITATIONS OF LIABILITY
SECTION 21.01. Section 75.002, Civil Practice and Remedies
Code, is amended by adding Subsection (h) to read as follows:
(h) An owner, lessee, or occupant of real property in this
state is liable for trespass as a result of migration or transport
of any air contaminant, as defined in Section 382.003(2), Health
and Safety Code, other than odor, only upon a showing of actual and
substantial damages by a plaintiff in a civil action.
ARTICLE 22. COMMUNITY BENEFITS AND CHARITY CARE
SECTION 22.01. Section 311.041, Health and Safety Code, is
amended to read as follows:
Sec. 311.041. POLICY STATEMENT. It is the purpose of this
subchapter to clarify and set forth the duties, [and]
responsibilities, and benefits that apply to [of nonprofit]
hospitals for providing community benefits that include charity
care.
SECTION 22.02. Subchapter D, Chapter 311, Health and Safety
Code, is amended by adding Section 311.0456 to read as follows:
Sec. 311.0456. ELIGIBILITY AND CERTIFICATION FOR LIMITED
LIABILITY. (a) In this section, "department" means the Texas
Department of Health.
(b) This section applies only to a nonprofit hospital or
hospital system that is certified by the department under
Subsection (d).
(c) To be eligible for certification under Subsection (d), a
nonprofit hospital or hospital system must provide:
(1) charity care in an amount equal to at least eight
percent of the net patient revenue of the hospital or hospital
system during the preceding fiscal year of the hospital or system;
and
(2) at least 40 percent of the charity care provided in
the county in which the hospital is located.
(d) To be certified under this subsection, a nonprofit
hospital or hospital system must submit a report based on its most
recent completed and audited prior fiscal year to the department
not later than April 30 of each year stating that the hospital or
system is eligible for certification. The department must verify
the information in the report not later than May 31 of the year in
which the department receives the report by checking the
information against the report filed by the hospital or system
under Section 311.046. After the department has verified the
information in the report, the department shall certify that the
hospital or hospital system has met the requirements for
certification. The certification issued under this subsection to a
nonprofit hospital or hospital system takes effect on May 31 of that
year and expires on the anniversary of that date.
(e) For the purposes of Subsection (b), a corporation
certified by the Texas State Board of Medical Examiners as a
nonprofit organization under Section 162.001, Occupations Code,
whose sole member is a qualifying hospital or hospital system is
considered a nonprofit hospital or hospital system.
(f) Notwithstanding any other law, the liability of a
nonprofit hospital or hospital system for noneconomic damages as
defined by Section 41.001, Civil Practice and Remedies Code, for a
cause of action that accrues during the period that the hospital or
system is certified under this section is subject to the
limitations specified by Section 101.023(b), Civil Practice and
Remedies Code, and Subsection (c) of that section does not apply.
This subsection establishes the total combined limit of liability
of the nonprofit hospital or hospital system and any employee,
officer, or director of the hospital or system for noneconomic
damages for each person and each single occurrence, as described by
Section 101.023(b), Civil Practice and Remedies Code.
SECTION 22.03. The heading to Subchapter D, Chapter 311,
Health and Safety Code, is amended to read as follows:
SUBCHAPTER D. COMMUNITY BENEFITS AND CHARITY CARE [DUTIES OF
NONPROFIT HOSPITALS]
ARTICLE 23. ACCELERATED APPEAL;
EFFECTIVE DATE; SEVERABILITY
SECTION 23.01. (a) The constitutionality and other
validity under the state or federal constitution of all or any part
of Article 10 of 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
all or any part of Article 10 of this Act affects the rights,
status, or legal relation of a party in a civil action with respect
to any other party in the civil action.
(b) 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
that all or any part of Article 10 of this Act is constitutional or
unconstitutional, or otherwise valid or invalid, under the state or
federal constitution is an accelerated appeal.
(c) If the judgment or order is interlocutory, an
interlocutory appeal may be taken from the judgment or order and is
an accelerated appeal.
(d) 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 Article 10 of
this Act.
(e) 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 Article 10 this
Act. The direct appeal is an accelerated appeal.
(f) This section exercises the authority granted by Section
3-b, Article V, Texas Constitution.
(g) An appeal under this section, 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 23.02. (a) All articles of this Act, other than
Article 17, take effect September 1, 2003.
(b) Article 17 of this Act takes effect immediately if this
Act 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, Article 17 of this Act takes effect September 1, 2003.
(c) Articles 4, 5, and 8 of this Act apply to an action filed
on or after July 1, 2003. An action filed before July 1, 2003, is
governed by the law in effect immediately before the change in law
made by Articles 4, 5, and 8, and that law is continued in effect for
that purpose.
(d) Except as otherwise provided in this section or by a
specific provision in an article, this Act applies only to an action
filed on or after the effective date of this Act. An action filed
before the effective date of this Act, including an action filed
before that date in which a party is joined or designated after that
date, is governed by the law in effect immediately before the change
in law made by this Act, and that law is continued in effect for that
purpose.
SECTION 23.03. If any provision of this Act or its
application to any person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of this
Act that can be given effect without the invalid provision or
application, and to this end the provisions of this Act are declared
to be severable.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 4 was passed by the House on March 28,
2003, by the following vote: Yeas 94, Nays 46, 2 present, not
voting; that the House refused to concur in Senate amendments to
H.B. No. 4 on May 21, 2003, and requested the appointment of a
conference committee to consider the differences between the two
houses; and that the House adopted the conference committee report
on H.B. No. 4 on June 1, 2003, by the following vote: Yeas 110,
Nays 34, 2 present, not voting; and that the House adopted H.C.R.
No. 299 authorizing certain corrections in H.B. No. 4 on June 2,
2003, by a non-record vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 4 was passed by the Senate, with
amendments, on May 16, 2003, by the following vote: Yeas 28, Nays
3; at the request of the House, the Senate appointed a conference
committee to consider the differences between the two houses; and
that the Senate adopted the conference committee report on H.B. No.
4 on June 1, 2003, by the following vote: Yeas 27, Nays 4; and that
the Senate adopted H.C.R. No. 299 authorizing certain corrections
in H.B. No. 4 on June 2, 2003, by a viva-voce vote.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor