78R4701 T
By: Nixon H.B. No. 709
A BILL TO BE ENTITLED
AN ACT
relating to health care liability claims.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1.03, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes) is amended to read as follows:
Sec. 1.03. DEFINITIONS. (a) In this part:
(1) "Claimant" means a person seeking or who has
sought recovery of damages in a health care liability claim. All
persons claiming to have sustained damages as the result of the
bodily injury or death of a single person are considered to be a
single claimant.
(2) [(1)] "Court" means any federal or state court.
(3) "Economic damages" means compensatory damages for
pecuniary loss, including , loss of earnings, loss of earning
capacity, loss of care, maintenance, support, services, advice,
counsel and reasonable contributions of a pecuniary value, loss of
inheritance, and medical, health care and custodial care expenses.
Economic damages does not include exemplary damages or damages for
physical pain and mental anguish, loss of consortium,
disfigurement, physical impairment, or loss of companionship and
society.
(4) "Emergency medical care" means bona fide emergency
services provided after the sudden onset of a medical or traumatic
condition manifesting itself by acute symptoms of sufficient
severity, including severe pain, such that the absence of immediate
medical attention could reasonably be expected to result in:
(A) placing the patient's health in serious
jeopardy;
(B) serious impairment to bodily functions; or
(C) serious dysfunction of any bodily organ or
part.
(5) [(2)] "Health care" means any act or treatment
performed or furnished, or which 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.
(6) [(3)] "Health care provider" means any person,
partnership, professional association, corporation, facility, or
institution duly licensed, certified, registered, or chartered by
the State of Texas to provide health care, including [as] a
registered nurse, hospital, dentist, podiatrist, pharmacist,
assisted living facility or nursing home. [, or] A health care
provider also includes an officer, employee, independent
contractor, or agent of a health care provider or physician
[thereof] acting in the course and scope of his employment or
contractual relationship.
(7) [(4)] "Health care liability claim" means a cause
of action against a health care provider or physician for
treatment, lack of treatment, or other claimed departure from
accepted standards of medical care or health care, [or] safety or
administrative practice or procedure which proximately results in
injury to or death of the patient, whether the patient's claim or
cause of action sounds in tort or contract.
(8) [(5)] "Hospital" means a duly licensed public or
private institution as defined in Chapter 241, Health and Safety
Code, or in Section 88, Chapter 243, Acts of the 55th Legislature,
Regular Session, 1957 (Article 5547-88, Vernon's Texas Civil
Statutes).
(9) [(6)] "Medical care" means any act defined as
practicing medicine in Article 4510, Revised Civil Statutes of
Texas, 1925, as amended, performed or furnished, or which should
have been performed, by one licensed to practice medicine in Texas
for, to, or on behalf of a patient during the patient's care,
treatment, or confinement.
(10) "Nursing home" means a duly licensed public or
private institution as defined in Chapter 242, Health and Safety
Code.
(11) [(7)] "Pharmacist" means one licensed under
Chapter 107, Acts of the 41st Legislature, Regular Session, 1929,
as amended (Article 4542a, Vernon's Texas Civil Statutes), who, for
the purposes of this Act, 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.
(12) [(8)] "Physician" means an [a] individual
[person] licensed to practice medicine in this state, 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, a partnership or
limited liability partnership formed by a group of physicians, or a
nonprofit health corporation certified under Section 162.001,
Occupations Code.
(13) [(9)] "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 part, not
otherwise defined in this part, shall have such meaning as is
consistent with the common law.
SECTION 2. The Medical Liability and Insurance Improvement
Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) is
amended by adding Subchapter C to read as follows:
SUBCHAPTER C. SETTLEMENT OFFERS.
Sec. 3.01. SETTLEMENT OFFERS; ACCEPTANCE. (a) At any time
prior to the 30th day before the commencement of a trial of a health
care liability claim, a defendant may serve on a plaintiff who is
asserting or entitled to assert a claim, a settlement offer for a
stated consideration to be performed in accordance with the terms
of an unconditional full release and settlement agreement executed
by or on behalf of the plaintiff to whom the offer is made.
(b) The defendant shall prepare and serve the release and
settlement agreement with the offer of settlement.
(c) A plaintiff who receives an offer of settlement from a
defendant may accept the offer only if the plaintiff serves written
notice on the defendant that the offer is accepted not later than
the 10th day after the date the offer is received.
(d) If the plaintiff accepts the settlement offer, the
defendant shall pay the full amount of the settlement offer to the
plaintiff in exchange for the plaintiff's executed release not
later than the 10th day after the date the plaintiff served notice
on the defendant accepting the offer, unless the parties agree
otherwise.
(e) The plaintiff accepting the settlement offer shall, not
later than the seventh day after the date the plaintiff received
payment and delivered the executed release, file a dismissal with
prejudice.
Sec. 3.02. SETTLEMENT OFFERS; REJECTION. (a) A settlement
offer by a defendant that is not accepted by a plaintiff within the
time specified by Section 3.01 of this subchapter is considered
rejected by the plaintiff and withdrawn by the defendant.
(b) Evidence of the settlement offer is admissible only in a
hearing before the court to determine court costs, expenses, and
attorney's fees under this section.
(c) The court shall determine the amount of monetary damages
that were awarded against a defendant who has made a settlement
offer to a plaintiff who has rejected the offer. In determining the
amount, the court shall exclude any prejudgment or postjudgment
interest.
(d) If the amount of monetary damages determined under
Subsection (c) of this section is equal to or less than the amount
of any rejected offer of settlement by the plaintiff, the court
shall order an offset against a judgment entered against the
defendant up to the amount of the judgment:
(1) all court costs incurred after the date the offer
was rejected; and
(2) reasonable and necessary expenses and attorney's
fees incurred by the defendant after the date the defendant offered
the settlement that was rejected.
(e) The court shall conduct a hearing to determine the
amount to assess against the plaintiff under Subsection (d) of this
section.
Sec. 3.03. MULTIPLE SETTLEMENT OFFERS. The defendant may
make a settlement offer without regard to whether the plaintiff has
rejected a previous offer.
SECTION 3. Section 4.01, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes) is amended by adding Section 4.01(f) read as follows:
(f) Notwithstanding the provisions of Rule 202, Texas Rules
of Civil Procedure, no deposition may be taken of any physician or
health care provider for the purpose of investigating a health care
liability claim prior to the filing of a lawsuit.
SECTION 4. Subchapter G, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Sections 7.03, 7.04 and 7.05 to read
as follows:
Sec. 7.03. JURY INSTRUCTIONS ON FEDERAL OR STATE INCOME
TAXES. (a) In a health care liability claim, if any claimant seeks
recovery for loss or earnings, loss of earning capacity, loss of
contributions of a pecuniary value, or loss of inheritance,
evidence of the past payment of federal or state income taxes by the
injured party or decedent through which the alleged loss has
occurred is admissible before the trier of fact for the purpose of
determining the existence and amount, if any, of the alleged loss.
(b) In a health care liability claim, if any claimant seeks
recovery for loss or earnings, loss of earning capacity, loss of
contributions of a pecuniary value, or loss of inheritance, the
court shall instruct the jury whether any recovery for compensatory
damages sought by the claimant are subject to federal or state
income taxes.
Sec. 7.04. 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,
the court shall instruct the jury to consider, together with all
other relevant matters:
(1) whether the person providing care did not have the
patient's medical history or was unable to obtain a full medical
history, including the knowledge of preexisting medical
conditions, allergies, and medications;
(2) the lack of a preexisting physician-patient
relationship;
(3) the circumstances constituting the emergency; and
(4) the circumstances surrounding the delivery of the
emergency medical care.
(b) The provisions of Subsection (a) of this section do not
apply to medical care or treatment:
(1) that occurs after the patient is stabilized and is
capable of receiving medical treatment as a nonemergency patient;
or
(2) that is unrelated to the original medical
emergency.
Sec. 7.05. CONFLICT WITH TEXAS RULES OF CIVIL EVIDENCE. (a)
To the extent that this subchapter conflicts with the Texas Rules of
Civil Evidence, this subchapter controls.
(b) Notwithstanding Section 22.004, Government Code, the
supreme court may not adopt or promulgate rules or amendments to
rules in conflict with this subchapter.
SECTION 5. Subchapter H, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes) is amended read as follows:
SUBCHAPTER H. PERIODIC PAYMENTS OF FUTURE DAMAGES.
Sec. 8.01. DEFINITIONS. In this subchapter:
(1) "Future damages" means damages that are incurred
after the date of the judgment for medical, health care or custodial
care services; physical pain and mental anguish, disfigurement, or
physical impairment; loss of consortium, companionship or society;
or loss of earnings.
(2) "Future loss of earnings" means loss of income,
wages or earning capacity, other pecuniary losses and loss of
inheritance that are incurred after the date of the judgment.
(3) "Periodic payments" means the payment of money or
its equivalent to the recipient of future damages at defined
intervals.
Sec. 8.02. COURT ORDER FOR PERIODIC PAYMENTS. (a) In an
action on a health care liability claim where final judgment is
rendered against a physician or health care provider, the court
shall, at the request of a defendant physician or health care
provider or claimant, enter an order that future damages of the
claimant be paid in whole or in part by periodic payments rather
than by a lump-sum payment if the present value of the award for
future damages, as determined by the court, equals or exceeds
$100,000. In entering a judgment ordering the payment of future
damages by periodic payments, the court shall make a specific
finding as to the dollar amount of periodic payments that will
compensate the claimant for the future damages. 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.
(b) 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 such damages awarded
by the judgment. A judgment for periodic payments shall provide for
payments to be funded by:
(1) an annuity contract issued by a company licensed
to do business as an insurance company;
(2) an obligation or obligations of the United States;
(3) applicable and collectible liability insurance
from one or more insurers; or
(4) any other satisfactory form of funding approved by
the court.
(c) Upon termination of periodic payments of future
damages, the court shall order the return of this security, or so
much as remains, to the defendant.
(d) The judgment ordering the payment of future damages by
periodic payments shall specify the recipient or recipients of the
payments, the dollar amount of the payments, the interval between
payments, and the number of payments or the period of time over
which payments shall be made.
(e) Money damages awarded for loss of future earnings shall
not be reduced or payments terminated by reason of the death of the
recipient or recipients of the award, but shall be paid to the
estate of the recipient or recipients of the award. Periodic
payments of future damages, other than future loss of earnings,
shall terminate upon the death of the recipient or recipients of
those future damages.
(f) In the event the recipient or recipients 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.
(g) 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 shall cease and any security given shall
revert to the defendant.
Sec. 8.03. AWARD OF ATTORNEY FEES. When attorney fees are
to be awarded in a final judgment, the fees shall be awarded
proportional to the award of past and future damages. If the
claimant has agreed to compensate the attorney on a contingency
basis, the claimant shall be responsible for paying the agreed
percentage calculated solely on the basis of that portion of the
award not subject to periodic payments. The remaining unpaid
portion of the attorney's fees shall be paid in periodic
installments of the same duration and intervals as the periodic
payments in accordance with an order entered by the court.
SECTION 6. SUBCHAPTER I, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes) is amended to read as follows:
SUBCHAPTER I. PAYMENT OF MEDICAL OR HEALTH CARE EXPENSES
[ADVANCE PAYMENTS]
Sec. 9.01. RECOVERY OF MEDICAL OR HEALTH CARE EXPENSES.
Recovery of medical or health care expenses in a health care
liability claim shall be limited to the amount actually paid or
incurred by or on behalf of the claimant.
Sec. 9.02. COLLATERAL BENEFITS. (a) A defendant physician
or health care provider may introduce evidence in a health care
liability claim of any amount payable as a collateral benefit to the
claimant pursuant to the Social Security Act (42 U.S.C. Section 301
et seq.), any state or federal income disability or worker's
compensation act, any individual or group policy of accident or
sickness insurance or any group health benefit plan offered by any
person that provides coverage for medical or health care services
or disability income protection. If a defendant physician or
health care provider elects to introduce evidence of amounts
payable as a benefit to the claimant, the claimant may introduce
evidence of any amount the claimant has paid to secure the right to
the benefit.
(b) During the pendency of an action, if the claimant has a
policy of insurance which provides health benefits or income
disability coverage, and the claimant is unwilling or unable to pay
the costs of renewing or continuing that policy of insurance in
force, the defendant physician or health care provider may tender
to the claimant the cost of maintaining the insurance coverage.
Upon receipt of such tender, the claimant shall continue such
policy or polices in force.
(c) The payer of collateral benefits, introduced pursuant
to Subsection (a), shall not recover any amount against the
claimant nor shall the payer be subrogated to any rights or claims
of the claimant, unless authorized by federal law.
Sec. 9.03. ADJUSTMENTS FOR ADVANCE PAYMENTS. The advance
payment shall inure to the exclusive benefit of the defendant or his
or its carrier making the advance payment, and in the event the
advance payment exceeds the pro rata liability of the defendant or
the carrier making the payment, the trial judge shall order any
adjustment necessary to equalize the amount which each defendant is
obligated to pay under this subchapter, exclusive of costs.
Sec. 9.04. CERTAIN ADVANCE PAYMENTS EXEMPT FROM REPAYMENT.
In no case shall an advance payment in excess of an award be
repayable by the person receiving it.
SECTION 7. Section 10.01, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes) is amended to read as follows:
Sec. 10.01. LIMITATION ON HEALTH CARE LIABILITY CLAIMS.
Notwithstanding any other law, no health care liability claim may
be commenced unless the action is filed within two years from the
occurrence of the breach or tort or from the date the medical or
health care treatment that is the subject of the claim or the
hospitalization for which the claim is made is completed; provided
that, minors under the age of 12 years shall have until their 14th
birthday in which to file, or have filed on their behalf, the claim.
Except as herein provided, this subchapter applies to all persons
regardless of minority or other legal disability. Notwithstanding
any other law regarding the disability of persons under the age of
eighteen years old to file and prosecute causes of action, this
section shall be construed as removing any disability of minority
that would otherwise prevent a minor from filing and prosecuting a
cause of action for a health care liability claim to the extent that
such other law is inconsistent with the provisions of this section.
SECTION 8. Section 11.01, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended to read as follows:
Sec. 11.01. DEFINITIONS [DEFINITION]. In this subchapter:
(1) "Consumer [consumer] price index" means, the
index published by the Bureau of Labor Statistics of the United
States Department of Labor that measures the average change in
prices of goods and services purchased by urban wage earners and
clerical workers' families and single workers living alone.
(2) "Economic damages" means compensatory damages for
any pecuniary loss or damage, but does not include any loss or
damage, however characterized, for past, present, and future
physical pain and suffering, mental anguish and suffering, loss of
consortium, loss of companionship and society, disfigurement, or
physical impairment.
SECTION 9. Section 11.02, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes) is amended to read as follows:
Sec. 11.02. LIMIT ON CIVIL LIABILITY. (a) In an action on a
health care liability claim where final judgment is rendered
against a physician or health care provider, the limit of civil
liability for all damages including punitive damages, of the
physician or health care provider shall be limited to an amount not
to exceed $500,000 per claimant.
(b) Subsection (a) of this section 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.
[(c) This section shall not limit the liability of any
insurer where facts exist that would enable a party to invoke the
common law theory of recovery commonly known in Texas as the
"Stowers Doctrine."]
(c) [(d)] 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: 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.
SECTION 10. Section 11.02, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding:
(e) In an action on a health care liability claim where
final judgment is rendered against a physician or health care
provider, the limit of civil liability for all damages and losses,
other than economic damages, of the physician or health care
provider shall be limited to an amount not to exceed $250,000 per
claimant.
SECTION 11. Section 11.03, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended to read as follows:
Sec. 11.03. ALTERNATIVE PARTIAL LIMIT ON CIVIL LIABILITY.
In the event that Section 11.02 [(a)] (e) of this subchapter is
stricken from this subchapter or is otherwise to any extent
invalidated by a method other than through legislative means, the
following shall become effective:
(a) In an action on a health care liability claim where
final judgment is rendered against a physician or health care
provider, the limit of civil liability for all damages and losses,
other than economic damages, of the physician or health care
provider [past and future noneconomic losses recoverable by or on
behalf of any injured person and/or the estate of such person,
including without limitations as applicable past and future
physical pain and suffering, mental anguish and suffering,
consortium, disfigurement, and any other nonpecuniary damage]
shall be limited to an amount not to exceed [$150,000] $250,000 per
claimant.
(b) Subsection (a) 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 $200,00 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 $1,500,000 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) 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 $300,00 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 $2,250,000 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) 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 $1,000,000 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 $100,000,000 for each health care
liability claim and at least $3,000,000 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 either of the following methods:
(1) providing proof of the purchase of a contract of
insurance or other plan of insurance authorized by the state; or
(2) providing proof of the maintenance of financial
reserves in a financial institution in this state that is chartered
by the United States or this state or an irrevocable letter of
credit from a financial institution in this state that is chartered
by the United States or this state.
SECTION 12. Section 11.04, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended to read as follows:
Sec. 11.04 ADJUSTMENT OF LIABILITY LIMITS. When there is an
increase or decrease in the consumer price index with respect to the
amount of that index on the effective date of this subchapter [each
of] the liability limit[s] prescribed in Section 11.02(a) [or in
Section 11.03] of this subchapter [as applicable] shall be
increased or decreased, as applicable, by a sum equal to the amount
of such limit multiplied by the percentage increase or decrease in
the consumer price index between the effective date of this
subchapter and the time at which damages subject to such limits are
awarded by final judgment or settlement.
SECTION 13. The Medical Liability and Insurance Improvement
Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is
amended by adding Subchapter S to read as follows:
SUBCHAPTER S. ATTORNEY FEES.
Sec. 19.01. LIMITATION ON ATTORNEY CONTINGENCY FEES. (a)
An attorney shall not contract for or collect a contingency fee for
representing any claimant seeking damages in connection with a
health care liability claim in excess of 33.3 percent of the amount
recovered.
(b) The limitations on attorney contingency fees shall
apply regardless of whether the recovery is by settlement,
arbitration, or judgment, or whether the person for whom the
recovery is sought is an adult, a minor, or an incapacitated person.
(c) If periodic payments are recovered by the claimant, the
court shall place a total value on these payments based upon the
claimant's projected life expectancy and then reduce this amount to
present value for purposes of computing the award of attorney's
fees.
(d) For purposes of this section, "recovered" means the net
sum recovered after deducting any disbursements or costs incurred
in connection with prosecution or settlement of the claim. Costs of
medical or health care services incurred by the claimant and the
attorney's office overhead costs or charges are not deductible
disbursements or costs for such purpose.
Sec. 19.02. ALTERNATIVE LIMIT ON ATTORNEY CONTINGENCY FEES.
In the event that Section 11.02(e) of this subchapter is stricken
from this subchapter or is otherwise to any extent invalidated by a
method other than through legislative means, the following shall
become effective:
(a) An attorney shall not contract for or collect a
contingency fee for representing any person seeking damages in
connection with a health care liability claim in excess of the
following limits:
(1) 40 percent of the first $50,000 recovered;
(2) 33.3 percent of the next $50,000 recovered:
(3) 25 percent of the next $500,000 recovered; and
(4) 15 percent of any additional amount recovered.
(b) The limitations on attorney contingency feed shall
apply regardless of whether the recovery is by settlement,
arbitration, or judgment, or whether the person for whom the
recovery is sought is an adult, a minor, or an incapacitated person.
(c) If periodic payments are recovered by the claimant, the
court shall place a total value on these payments based upon the
claimant's projected life expectancy and then reduce this amount to
present value for purposes of computing the award of attorney's
fees.
(d) For purposes of this section, "recovered" means the net
sum recovered after deducting any disbursements or costs incurred
in connection with prosecution or settlement of the claim. Costs of
medical or health care services incurred by the claimant and the
attorney's office overhead costs or charges are not deductible
disbursements or costs for such purpose.
SECTION 14. Subchapter L, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Section 12.02 to read as follows:
Sec. 12.02. STANDARD OF PROOF IN CASES INVOLVING EMERGENCY
MEDICAL CARE. In a suit involving a health care liability claim
against a physician or health care provider for injury to or death
of a patient arising out of the provision of emergency medical care,
the person bringing the suit may prove that the treatment or lack of
treatment by the physician or health care provider departed from
accepted standards of medical care or health care only if the person
shows by clear and convincing evidence that the physician or health
care provider did not use the degree of care and skill that is
reasonably expected of an ordinarily prudent physician or health
care provider in the same or similar circumstances.
SECTION 15. Section 13.01, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes) is amended to read as follows:
Sec. 13.01. [COST BOND, DEPOSIT, AND] EXPERT REPORT. (a) In
a health care liability claim, a claimant shall, not later than the
180th [90th] day after the date the claim is filed [:
[(1) file a separate cost bond in the amount of $5,000
for each physician or health care provider named by the claimant in
the action;
[(2) place cash in an escrow account in the amount of
$5,000 for each physician or health care provider named in the
action; or
[(3)] serve on each party or their attorney [file] one
or more [an] expert reports [report],with a curriculum vitae of
each expert listed in the report, for each physician or health care
provider against whom a health care liability claim is asserted
[with respect to whom a cost bond has not been filed and cash in lieu
of the bond has not been deposited under Subdivision (1) or (2) of
this subsection].
(b) 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 of
the patient's medical records, medical or psychological studies, or
tissue samples through:
(1) written discovery as defined in Rule 192.7, Texas
Rules of Civil Procedure;
(2) depositions on written questions under Rule 200,
Texas Rules of Civil Procedure; and
(3) discovery from non-parties under Rule 205, Texas
Rules of Civil Procedure.
(c) [(b)] If, as to a defendant physician or health care
provider, an expert report[, cost bond, or cash in lieu of bond] has
not been served [filed or deposited] within the period specified by
Subsection (a) [or (h) of this section], the court, on the motion of
the affected physician or health care provider, shall enter an
order that:
(1) awards to the affected physician or health care
provider reasonable attorney fees and costs of court incurred by
that defendant physician or health care provider [requires the
filing of a $7,500 cost bond with respect to the physician or health
care provider not later than the 21st day after the date of the
order]; and
(2) dismisses the claim [provides that if the claimant
fails to comply with the order, the action shall be dismissed for
want of prosecution] with respect to the physician or health care
provider, with prejudice [subject to reinstatement in accordance
with the applicable rules of civil procedure and Subsection (c) of
this section].
[(c) Before a claim that has been dismissed under Subsection
(b)(2) of this section may be reinstated, the claimant must pay the
costs of court incurred by the defendant before the dismissal and
file a $7,500 cost bond for each defendant physician or health care
provider.
[(d) Not later than the later of the 180th day after the date
on which a health care liability claim is filed or the last day of
any extended period established under Subsection (f) or (h) of this
section, the claimant shall, for each physician or health care
provider against whom a claim is asserted:
[(1) furnish to counsel for each physician or health
care provider one or more expert reports, with a curriculum vitae of
each expert listed in the report; or
[(2) voluntarily nonsuit the action against the
physician or health care provider.
[(e) If a claimant has failed, for any defendant physician
or health care provider, to comply with Subsection (d) of this
section within the time required, the court shall, on the motion of
the affected physician or health care provider, enter an order
awarding as sanctions against the claimant or the claimant's
attorney:
[(1) the reasonable attorney's fees and costs of court
incurred by that defendant;
[(2) the forfeiture of any cost bond respecting the
claimant's claim against that defendant to the extent necessary to
pay the award; and
[(3) the dismissal of the action of the claimant
against that defendant with prejudice to the claim's refiling.
[(f) The court may, for good cause shown after motion and
hearing, extend any time period specified in Subsection (d) of this
section for an additional 30 days. Only one extension may be granted
under this subsection.
[(g) Notwithstanding any other provision of this section,
if a claimant has failed to comply with a deadline established by
Subsection (d) of this section and after hearing the court finds
that the failure of the claimant or the claimant's attorney was not
intentional or the result of conscious indifference but was the
result of an accident or mistake, the court shall grant a grace
period of 30 days to permit the claimant to comply with that
subsection. A motion by a claimant for relief under this subsection
shall be considered timely if it is filed before any hearing on a
motion by a defendant under Subsection (e) of this section.
[(h) The affected parties may agree to extend any time
period specified in Subsection (a) or (d) of this section. An
agreement under this subsection is binding and shall be honored by
the court if signed by the affected parties or their counsel and
filed with the court.]
(d) [(i)] Notwithstanding any other provision of this
section, a claimant may satisfy any requirement of this section for
serving [filing]an expert report by serving [filing] reports of
separate experts regarding different physicians or health care
providers or regarding different issues arising from the conduct of
a physician or health care provider, such as issues of liability and
causation. Nothing in this section shall be construed to mean that
a single expert must address all liability and causation issues
with respect to all physicians or health care providers or with
respect to both liability and causation issues for a physician or
health care provider.
(e) [(j)] Nothing in this section shall be construed to
require the serving [filing] of an expert report regarding any
issue other than an issue relating to liability or causation.
(f) [(k) Notwithstanding any other law, an] An expert
report served [filed] under this section:
(1) is not admissible in evidence by any party [a
defendant];
(2) shall not be used in a deposition, trial, or other
proceeding; and
(3) shall not be referred to by [a defendant] any party
during the course of the action for any purpose.
(g) 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 (f) on use of the expert report by any party is waived.
(h) [(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 [a] objective good
faith effort to comply with the definition of an expert report in
Subsection (k) [(r)] (6) of this section.
[(m) On the claimant's compliance with the requirements of
Subsection (d) of this section:
[(1) any cost bond filed or cash deposited in an escrow
account by the claimant under this section shall be released;
[(2) the claimant, the claimant's counsel, and any
surety have no liability on the cost bond or cash deposit; and
[(3) an execution shall not be issued on the cost bond
or cash deposit.
[(n) If a claimant nonsuits a health care liability claim
against a physician or health care provider before filing a cost
bond and seeks to refile the same or a similar health care liability
claim against the physician or health care provider, the claimant
shall file a $7,500 cost bond for each previously nonsuited
physician or health care provider at the time of the filing of the
health care liability claim. If the claimant fails to file the
$7,500 cost bond for each physician or health care provider, on
motion and hearing the court shall order the filing of the cost bond
and the claimant shall pay the movant reasonable attorney's fees
incurred in obtaining relief under this subsection.
[(o) Notwithstanding any other provision of this section, a
claimant who is proceeding without an attorney and who is unable to
afford a cost bond or cash deposit may, in lieu of a cost bond or
cash deposit, file an affidavit in the same form required for an
affidavit in lieu of security for costs under the Texas Rules of
Civil Procedure.]
(i) [(p)] In the event of a conflict between this section
and another law, including a rule of procedure or court rule, this
section controls to the extent of the conflict.
(j) [(q)] Notwithstanding the provisions of Section 22.004,
Government Code, the supreme court may not amend or adopt rules in
conflict with this section. The district courts and statutory
county courts in a county may not adopt local rules in conflict with
this section.
(k) [(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) "Claimant" means a party who files a pleading
asserting a claim. All plaintiffs claiming to have sustained
damages as the result of the bodily injury or death of a single
person are considered to be a single claimant.]
(3) [(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.
(4) [(5)] "Expert" means:
(A) with respect to a person giving opinion
testimony regarding whether a physician departed from accepted
standards of medical care, an expert qualified to testify under the
requirements of Section 14.01(a) of this Act; or
(B) with respect to a person giving opinion
testimony regarding whether a health care provider departed from
accepted standards of health care [about a nonphysician health care
provider], an expert qualified to testify under the requirements of
Section 14.02 of this Act [who has knowledge of accepted standards
of care for the diagnosis, care, or treatment of the illness,
injury, or condition involved in the claim]; or
(C) with respect to 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; or
(D) with respect to giving opinion testimony
about the causal relationship between the injury, harm or damages
claimed and the alleged departure from the applicable standard of
care for a dentist, a dentist who is otherwise qualified to render
opinions on such causal relationship under the Texas Rules of
Evidence; or
(E) with respect to giving opinion testimony
about the causal relationship between the injury, harm or damages
claimed and the alleged departure from the applicable standard of
care for a podiatrist, a podiatrist who is otherwise qualified to
render opinions on such causal relationship under the Texas Rules
of Evidence.
(5) [(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.
SECTION 16. Sections 14.01(e) and (g), Medical Liability
and Insurance Improvement Act of Texas (Article 4590i, Vernon's
Texas Civil Statutes) are amended to read as follows:
(e) A pretrial objection to the qualifications of a witness
under this section must be made not later than the later of the 21st
day after the date the objecting party receives a copy of the
witness's curriculum vitae or the 21st day after the date of the
witness's deposition. If circumstances arise after the date on
which the objection must be made that could not have been reasonably
anticipated by a party before that date and that the party believes
in good faith provide a basis for an objection to a witness's
qualifications, and if an objection was not made previously, this
subsection does not prevent the party from making an objection as
soon as practicable under the circumstances. The court shall
conduct a hearing to determine whether the witness is qualified as
soon as practicable after the filing of an objection and, if
possible, before trial. If the objecting party is unable to object
in time for the hearing to be conducted before the trial, the
hearing shall be conducted outside the presence of the jury. This
subsection does not prevent a party from examining or
cross-examining a witness at trial about the witness's
qualifications.
(g) In this subchapter [section], "physician" means a
person who is:
(1) licensed to practice medicine in one or more
states in the United States; or
(2) a graduate of a medical school accredited by the
Liaison Committee on Medical Education or the American Osteopathic
Association if testifying as a defendant and that testimony relates
to that defendant's standard of care, alleged departure from that
standard of care, or the causal relationship between the alleged
departure from that standard of care and the injury, harm or damages
claimed.
SECTION 17. Subchapter N, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes) is amended by adding Sections 14.02 and 14.03 to read as
follows:
Sec. 14.02. QUALIFICATIONS OF EXPERT WITNESS IN SUIT
AGAINST A HEALTH CARE PROVIDER. (a) In a suit involving a health
care liability claim against a health care provider, a person may
qualify as an expert witness on the issue of whether the health care
provider departed from accepted standards of care only if the
person:
(1) is practicing health care in the same field of
practice as the health care provider defendant at the time such
testimony is given or was practicing as such a health care provider
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.
(b) For the purpose of this section, "practicing health
care" includes, but is not limited to, training health care
providers in the same field as the defendant health care provider at
an accredited educational institution or serving as a consulting
health care provider and being licensed, certified, or registered
in the same field as the defendant health care provider.
(c) In determining whether a witness is qualified on the
basis of training or experience, the court shall consider whether,
at the time the claim arose or at the time the testimony is given,
the witness:
(1) is certified by a Texas licensing agency or a
national professional certifying agency, or has other substantial
training or experience, in the area of health care relevant to the
claim; and
(2) is actively practicing health care in rendering
health care services relevant to the claim.
(d) The court shall apply the criteria specified in
subsections (a), (b), and (c) of this section in determining
whether an expert is qualified to offer expert testimony on the
issue of whether the 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 employees of the defendant health care provider,
from qualifying as an expert.
(f) A pretrial objection to the qualifications of a witness
under this section must be made not later than the later of the 21st
day after the date the objecting party receives a copy of the
witness's curriculum vitae or the 21st day after the date of the
witness's deposition. If circumstances arise after the date on
which the objection must be made that could not have been reasonably
anticipated by a party before that date and that the party believes
in good faith provide a basis for an objection to a witness's
qualifications, and if an objection was not made previously, this
subsection does not prevent the party from making an objection as
soon as practicable under the circumstances. The court shall
conduct a hearing to determine whether the witness is qualified as
soon as practicable after the filing of an objection and, if
possible, before trial. If the objecting party is unable to object
in time for the hearing to be conducted before the trial, the
hearing shall be conducted outside the presence of the jury. This
subsection does not prevent a party from examining or
cross-examining a witness at trial about the witness's
qualifications.
Sec. 14.03. QUALIFICATIONS OF EXPERT WITNESS ON CAUSATION
IN HEALTH CARE LIABILITY CLAIM. (a) Except as provided in
Subsections (b) and (c) of this section, in a suit involving a
health care liability claim against a physician or health care
provider, a person may qualify as an expert witness on the issue of
the causal relationship between the alleged departure from accepted
standards of care and the injury, harm, or damages claimed only if
the person is a physician and is otherwise qualified to render
opinions on such causal relationship under the Texas Rules of
Evidence.
(b) In a suit involving a health care liability claim
against a dentist, a person may qualify as an expert witness on the
issue of the causal relationship between the alleged departure from
accepted standards of care and the injury, harm, or damages
claimed, if the person is a dentist and is otherwise qualified to
render opinions on such causal relationship under the Texas Rules
of Evidence.
(c) In a suit involving a health care liability claim
against a podiatrist, a person may qualify as an expert witness on
the issue of the causal relationship between the alleged departure
from accepted standards of care and the injury, harm, or damages
claimed, if the person is a podiatrist and is otherwise qualified to
render opinions on such casual relationship under the Texas Rules
of Evidence.
(d) A pretrial objection to the qualifications of a witness
under this section must be made not later than the later of the 21st
day after the date the objecting party receives a copy of the
witness's curriculum vitae or the 21st day after the date of the
witness's deposition. If circumstances arise after the date on
which the objection must be made that could not have been reasonably
anticipated by a party before that date and that the party believes
in good faith provide a basis for an objection to a witness's
qualifications, and if an objection was not made previously, this
subsection does not prevent the party from making an objection as
soon as practicable under the circumstances. The court shall
conduct a hearing to determine whether the witness is qualified as
soon as practicable after the filing of an objection and, if
possible, before trial. If the objecting party is unable to object
in time for the hearing to be conducted before the trial, the
hearing shall be conducted outside the presence of the jury. This
subsection does not prevent a party from examining or
cross-examining a witness at trial about the witness's
qualifications.
SECTION 18. Subchapter P, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes) is amended to read as follows:
SUBCHAPTER P. PREJUDGMENT INTEREST
Sec. 16.01. APPLICATION OF OTHER LAW. Notwithstanding
Chapter 304, Texas Finance Code [Section 6(a)-(f), Article 1.05,
Title 79, Revised Statutes (Article 5069-1.06, Vernon's Texas Civil
Statutes)], prejudgment interest in a judgment on a health care
liability claim shall be awarded in accordance with this
subchapter.
Sec. 16.02. COMPUTATION OF PREJUDGMENT INTEREST. [(a) In a
health care liability claim, prejudgment interest may not be
charged with respect to a defendant physician or health care
provider who has settled the claim before the 181st day after the
date notice of the claim was first mailed to the physician or health
care provider.]
(a) [(b)] Subject to Section 11.01 and 11.02 of this Act [In
a health care liability claim that is not settled within the period
specified by Subsection (a) of this section], the judgment must
include prejudgment interest on past damages awarded in the
judgment [found by the trier of fact], but shall not include
prejudgment interest on future damages [found by the trier of fact]
awarded in the judgment.
(b) [(c)] Prejudgment interest allowed under this
subchapter shall be computed in accordance with Sections
304.003(b)(1) of the Texas Finance Code [Article 1E.103, Title 79,
Revised Statutes], for a period beginning on the date of injury and
ending on the date before the date the judgment is signed.
(c) [(d)] In this section:
(1) "Past damages" means damages awarded to compensate
the claimant for loss the claimant will incur for a period beginning
on the date of injury and ending on the date before the date of
judgment.
(2) "Future damages" means damages awarded to
compensate the claimant for loss the claimant will incur after the
date of judgment.
SECTION 19. Section 51.0014(a), Civil Practice and Remedies
Code, is amended to read as follows:
(a) A person may appeal from an interlocutory order of a
district court, county court at law, or county court that:
(1) appoints a receiver or trustee;
(2) overrules a motion to vacate an order that
appoints a receiver or trustee;
(3) certifies or refuses to certify a class in a suit
brought under Rule 42 of the Texas Rules of Civil Procedure;
(4) grants or refuses a temporary injunction or grants
or overrules a motion to dissolve a temporary injunction as
provided by Chapter 65;
(5) denies a motion for summary judgment that is based
on an assertion of immunity by an individual who is an officer or
employee of the state or a political subdivision of the state;
(6) denies a motion for summary judgment that is based
in whole or in part upon a claim against or defense by a member of
the electronic or print media, acting in such capacity, or a person
whose communication appears in or is published by the electronic or
print media, arising under the free speech or free press clause of
the First Amendment to the United States Constitution, or Article
1, Section 8, of the Texas Constitution, or Chapter 73;
(7) grants or denies the special appearance of a
defendant under Rule 120a, Texas Rules of Civil Procedure, except
in a suit brought under the Family Code; [or]
(8) grants or denies a plea to the jurisdiction by a
governmental unit as that term is defined in Section 101.001;
(9) denies all or part of the relief sought pursuant to
a motion under Section 13.01(c), Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes); or
(10) grants relief sought pursuant to a motion under
Section 13.01(h), Medical Liability and Insurance Improvement Act
of Texas (Article 4590i,Vernon's Texas Civil Statutes).
SECTION 20. Sections 82.001 and 82.002, Civil Practice and
Remedies Code, are amended to read as follows:
Sec. 82.001. DEFINITIONS. In this chapter:
(1) "Claimant" means a party seeking relief, including
a plaintiff, counterclaimant, or cross-claimant.
(2) "Products liability action" means any action
against a manufacturer, [or] seller, or Medical Service Provider
for recovery of damages arising out of personal injury, death, or
property damage allegedly caused by a defective product whether the
action is based in strict tort liability, strict products
liability, negligence, misrepresentation, breach of express or
implied warranty, or any other theory or combination of theories.
(3) "Seller" means a person who is engaged in the
business of distributing or otherwise placing, for any commercial
purpose, in the stream of commerce for use or consumption a product
or any component part thereof.
(4) "Manufacturer" means a person who is a designer,
formulator, constructor, rebuilder, fabricator, producer,
compounder, processor, or assembler of any product or any component
part thereof and who places the product or any component part
thereof in the stream of commerce.
(5) "Medical Service Provider" means a person,
partnership, corporation or professional association composed of
persons duly licensed or chartered by the State of Texas to practice
medicine in the state or a duly licensed public or private
institution as defined in Chapter 241, Health & Safety Code, or in
Section 88, Chapter 243, Acts of the 55th Legislature, Regular
Session, 1957 (Article 5549-88) or other health care provider as
defined in Section 1.03(a)(3) of Article 4590i who prescribes or
dispenses a drug or device, as those terms are defined in the
Federal Food, Drug and Cosmetic Act (21 U.S.C. Section 321).
Sec. 82.002. MANUFACTURER'S DUTY TO INDEMNIFY. (a) A
manufacturer shall indemnify and hold harmless a seller or medical
service provider against loss arising out of a products liability
action, except for any loss caused by the seller's or medical
service provider's negligence, intentional misconduct, or other
act or omission, such as negligently modifying or altering the
product, for which the seller is independently liable. A medical
service provider shall not be considered negligent for prescribing
or providing a drug or device according to the manufacturer's
written or oral recommendations or according to any therapeutic
manner generally accepted in the community.
(b) For purposes of this section, "loss" includes court
costs and other reasonable expenses, reasonable attorney fees, and
any reasonable damages.
(c) Damages awarded by the trier of fact shall, on final
judgment, be deemed reasonable for purposes of this section.
(d) For purposes of this section, a wholesale distributor or
retail seller who completely or partially assembles a product in
accordance with the manufacturer's instructions shall be
considered a seller.
(e) The duty to indemnify under this section:
(1) applies without regard to the manner in which the
action is concluded; and
(2) is in addition to any duty to indemnify
established by law, contract, or otherwise.
(f) A seller or medical service provider eligible for
indemnification under this section shall give reasonable notice to
the manufacturer of a product claimed in a petition or complaint to
be defective, unless the manufacturer has been served as a party or
otherwise has actual notice of the action.
(g) A seller or medical service provider is entitled to
recover from the manufacturer court costs and other reasonable
expenses, reasonable attorney fees, and any reasonable damages
incurred by the seller or medical service provider to enforce the
seller's or medical service provider's right to indemnification
under this section.
SECTION 21. Section 84.004(c), Civil Practice and Remedies
Code, is amended to read as follows:
(c) Except as provided by Subsection (d) and Section 84.007,
a volunteer health care provider [who is serving as a direct service
volunteer of a charitable organization]is immune from civil
liability for any act or omission resulting in death, damage, or
injury to a patient if:
[(1) the volunteer was acting in good faith and in the
course and scope of the volunteer's duties or functions within the
organization;]
[(2)] (1) the volunteer commits the act or omission in
the course of providing health care services to the patient;
[(3)] (2) the services provided are within the scope
of the license of the volunteer; and
[(4)] (3) before the volunteer provides health care
services, the patient or, if the patient is a minor or is otherwise
legally incompetent, the patient's parent, managing conservator,
legal guardian, grandparent, adult brother or sister, 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, an educational institution in
which the patient is enrolled and has written authorization to
consent for the patient from the parent, managing conservator or
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 22. Chapter 84, Civil Practice and Remedies Code,
is amended by adding Section 84.065 to read as follows:
Sec. 84.0065. ORGANIZATION LIABILITY OF HOSPITALS. Except
as provided by in Section 84.007 of this Act, in any civil action
brought against a hospital or hospital system, or their respective
employees, officers, directors, or volunteers for damages based on
an act or omission by such hospital or hospital system, or their
respective employees, officers, directors or volunteers, the
liability of the hospital or hospital system, or their respective
employees, officers, directors, or volunteers 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 patient's parent, managing conservator, legal guardian,
grandparent, adult brother or sister, 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, an educational institution in which the
patient is enrolled and has written authorization to consent for
the patient from the parent, managing conservator or guardian, or
other person with legal responsibility for the care of the patient
signs a written statement that acknowledges:
(1) that the hospital or hospital system 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 or hospital system in exchange for receiving the
health care services.
SECTION 23. Section 88.002, Civil Practice and Remedies
Code, is amended by adding Subsection (l) to read as follows:
(l) This chapter does not create liability on the part
of physicians or health care providers for medical care or health
care services performed or furnished or which should have been
performed or furnished for, to, or on behalf of a patient.
SECTION 24. Article 5.15-1, Insurance Code, is amended by
adding Section 11 to read as follows:
Sec. 11. VENDOR'S ENDORSEMENT. No insurer shall 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 in Section 82.001(4), 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 25. REPEALER. Section 242.0372, Health and Safety
Code, is repealed.
SECTION 26. (a) The commissioner of insurance, with the
full cooperation of the Health Professions Council, the Texas
Health and Human Services Commission, the Employees Retirement
System and the Teachers Retirement System, shall conduct a series
of studies regarding the effect of this legislation on the:
(1) price and availability of insurance for health
care liability claims;
(2) number and cost of health liability claims;
(3) price and availability of health insurance;
(4) cost-savings, if any, to the state budget; and
(5) willingness of healthcare providers to provide
health care services.
(b) The commissioner of insurance may, at the
commissioner's discretion, require the state entities listed above
to enter into Memorandums of Understanding in order to facilitate
the preparation of the study.
(c) The commissioner of insurance may contract with an
outside consultant to assist with the study and to draft reports, as
necessary.
(d) Not later than January 1, 2004, the commissioner of
insurance shall begin collecting information necessary to conduct
the study required under this section.
(e) Not later than December 1, 2006, the commissioner of
insurance shall submit a report to the legislature regarding the
results of the study conducted under this section. The commissioner
of insurance shall submit subsequent reports to the legislature on
an annual basis.
SECTION 27. The Medical Liability and Insurance Act of
Texas (Article 4590i, Vernon's Texas Civil Statutes) is amended by
adding Subchapter Q to read as follows:
SUBCHAPTER Q. DECLARATORY JUDGMENTS; INJUNCTIONS; APPEALS.
Sec. 17.01. APPLICABILITY. This subchapter applies to all
amendments to the Medical Liability and Insurance Improvement Act
of Texas (Article 4590i, Vernon's Texas Civil Statutes) enacted by
the 78th Legislature, Regular Session, 2003, and during all
subsequent regular or special sessions of the legislative.
Sec. 17.02. DECLARATORY JUDGMENT; APPEALS. (a) The
constitutionality and other validity under the state or federal
constitution of all or any part of any amendment to the Medical
Liability and Insurance Improvement Act of Texas may be determined
in an action for declaratory judgment in a district court in Travis
County pursuant to the Uniform Declaratory Judgments Act (Chapter
37, Civil Practice and Remedies Code) if it is alleged that the
amendment or a part of the amendment affects the rights, status, or
legal relation of a party in a civil action with respect to any
other party in the civil action.
(b) Any 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,
pursuant to subsection (a) of this section, that all or any part of
any amendment to the Texas Liability and Insurance Improvement Act
of Texas is constitutional or unconstitutional, or otherwise valid
or invalid, under the state or federal constitution shall be an
accelerated appeal. If that judgment or order is interlocutory, an
interlocutory appeal may be taken from the judgment or order and
shall be an accelerated appeal.
(c) An association or alliance has standing to sue for and
obtain a declaratory judgment pursuant to subsection (a) of this
section in an action filed and maintained by the association or
alliance, and to appeal or otherwise be a party to an appeal
pursuant to subsection (b) of this section, if it is alleged that:
(1) the association or alliance has more than one
member who has standing to sue in the member's own right;
(2) the interests the association or alliance seeks to
protect are germane to a purpose of the association or alliance; and
(3) the claim asserted and declaratory relief
requested by the association or alliance relate to all or a
specified part of the amendment involved in the action being
facially constitutional or unconstitutional, or otherwise facially
valid or invalid, under the state or federal constitution.
Sec. 17.03. INJUNCTIONS; APPEALS. (a) A district court in
Travis County may grant or deny a temporary or otherwise
interlocutory injunction or a permanent injunction on a ground of
the constitutionality or unconstitutionality, or other validity or
invalidity, under the state or federal constitution of all or any
part of any amendment to the Medical Liability and Insurance
Improvement Act of Texas.
(b) Pursuant to Section 3-b, Article V, Texas Constitution,
the legislature hereby provides for an appeal direct to the Supreme
Court of the State of Texas from an order, however characterized, of
any trial court granting or denying a temporary or otherwise
interlocutory injunction or a permanent injunction on a ground of
the constitutionality or unconstitutionality, or other validity or
invalidity, under the state or federal constitution of all or any
part of any amendment to the Medical Liability and Insurance
Improvement Act of Texas.
(c) A direct appeal pursuant to subsection (b) of this
section shall be an accelerated appeal.
(d) An association or alliance has standing to sue for and
obtain an order, pursuant to subsection (a) of this section,
granting or denying a temporary or otherwise interlocutory
injunction or a permanent injunction in an action filed and
maintained by the association or alliance, and to appeal or
otherwise be a party to an appeal pursuant to subsections (b) and
(c) of this section, if it is alleged that:
(1) the association or alliance has more than one
member who has standing to sue in the member's own right;
(2) the interests the association or alliance seeks to
protect are germane to a purpose of the association or alliance; and
(3) the claim asserted and injunctive relief requested
by the association or alliance relate to all or a specified part of
the amendment involved in the action being facially constitutional
or unconstitutional, or otherwise facially valid or invalid, under
the state or federal constitution.
Sec. 17.04. RULES FOR APPEALS. An appeal to which any of
the provisions of this subchapter apply, including an
interlocutory, accelerated, or direct appeal, shall be governed, as
applicable, by 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 to the extent applicable.
SECTION 28. (a) This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect on September 1, 2003.
(b) Except as provided by this section, the changes in law
made by this Act to the Medical Liability and Insurance Improvement
Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) apply
only to a cause of action that accrues on or after January 1, 2004.
Except as provided by this section, a cause of action that accrues
before January 1, 2004, is governed by the law in effect immediately
before the effective date of this Act, and that law is continued in
effect for that purpose.
(c) Subchapter S, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), as added by this Act, applies only to an attorney fee
agreement or contract that is entered into on or after January 1,
2004. An attorney fee agreement or contract entered into before
January 1, 2004, is governed by the law in effect immediately before
the effective date of this Act, and that law is continued in effect
for that purpose.
(d) In the event that this Act takes effect on September 1,
2003, pursuant to subsection (a) of this section:
(1) All changes in law made by this Act to the Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes), other than Subchapter S added by
this Act, also apply to a health care liability claim that is
included in an action or suit filed on or after September 1, 2003,
and to that action or suit.
(2) In the event that written notice of a health care
liability claim is given by certified mail, return receipt
requested, in compliance with Section 4.01(a) of the Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes) on or after June 1, 2003, and before
September 1, 2003, the giving of that notice shall constitute for
purposes of this section the filing, as of the date of depositing
that notice in the mail, of an action or suit which includes that
claim as against each physician or health care provider to whom that
notice is so given.
(e) In the event that this Act takes effect immediately,
pursuant to subsection (a) of this section:
(1) All changes in law made by this Act to the Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes), other than Subchapter S added by
this Act, also apply to a health care liability claim that is
included in an action or suit filed on or after the ninetieth day
after the effective date of this Act, and to that action or suit.
(2) In the event that written notice of a health care
liability claim is given by certified mail, return receipt
requested, in compliance with Section 4.01(a) of the Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes) on or after the effective date of
this Act, and before the ninetieth day after the effective date of
this Act, the giving of that notice shall constitute for purposes of
this section the filing, as of the date of depositing that notice in
the mail, of an action or suit which includes that claim as against
each physician or health care provider to whom that notice is so
given.
SECTION 29. (a) The Legislature of the State of Texas finds
that:
(1) the number of health care liability claims
(frequency) has increased since 1995 inordinately;
(2) the filing of legitimate health care liability
claims in Texas is a contributing factor affecting medical
professional liability rates;
(3) the amounts being paid out by insurers in
judgments and settlements (severity) have likewise increased
inordinately in the same short period of time;
(4) the effect of the above has caused a serious public
problem in availability of and affordability of adequate medical
professional liability insurance;
(5) the situation has created a medical malpractice
insurance crisis in the State of Texas;
(6) this crisis has had a material adverse effect on
the delivery of medical and health care in Texas, including
significant reductions of availability of medical and health care
services to the people of Texas and a likelihood of further
reductions in the future;
(7) the crisis has had a substantial impact on the
physicians and hospitals of Texas and the cost to physicians and
hospitals for adequate medical malpractice insurance has
dramatically risen in price, with cost impact on patients and the
public;
(8) the direct cost of medical care to the patient and
public of Texas has materially increased due to 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 the state 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;
(12) the adoption of certain modifications in the
medical, insurance, and legal systems, the total effect of which is
currently undetermined, may or may not have an effect on the rates
charged by insurers for medical professional liability insurance;
(13) these facts have been studied by the Nelson.
(b) Because of the conditions stated in Subsection (a) of
this section, it is the purpose of this Act to improve and modify
the system by which health care liability claims are determined in
order to:
(1) reduce excessive frequency and severity of health
care liability claims through reasonable improvements and
modifications in the Texas insurance, tort, and medical practice
systems;
(2) decrease the cost of those claims and assure 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.