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By: Canales H.B. No. 3104
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. The Medical Liability and Insurance Improvement
Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is
amended by adding Subchapter B to read as follows:
SUBCHAPTER B. PREFILING PROCEDURE
Sec. 2.01. PREREQUISITES TO FILING: NOTICE; EXPERT REPORT;
MEDIATION. (a) In this section, "mediation" has the meaning
assigned by Section 154.023(a), Civil Practice and Remedies Code.
(b) Except as provided by Subsection (c) of this section, a
person may not file a health care liability claim against a
physician or health care provider unless the person has:
(1) provided the physician or provider written notice
of the claim by certified mail, return receipt requested; or
(2) obtained an expert report regarding the physician
or provider that meets the requirements of Section 2.05 of this Act
and served the physician or provider with a copy of the report and a
request for mediation under this subchapter; and
(3) participated in mediation of the claim in
accordance with this subchapter.
(c) A person may file a health care liability claim against
a physician or health care provider if the physician or provider:
(1) refuses to participate in mediation under this
subchapter; or
(2) fails to respond to a request for mediation served
on the physician or provider under Subsection (b) of this section.
Sec. 2.02. SWORN STATEMENT REQUIRED. A complaint filed
that asserts a health care liability claim must include:
(1) a copy of the expert report required by Section
2.01 of this Act; and
(2) an affidavit stating that:
(A) the parties submitted the issues addressed in
the complaint to mediation in compliance with this subchapter and
failed to reach a written agreement as a result of the mediation; or
(B) the physician or health care provider named
in the complaint:
(i) refuses to participate in mediation
under this subchapter; or
(ii) failed to respond to a request for
mediation served on the physician or provider under Section 2.01 of
this Act.
Sec. 2.03. RECORDS REQUEST. If a person asserting a health
care liability claim serves a physician or health care provider
with a written request for the person's medical records maintained
by the physician or provider, the physician or provider shall
provide the records with an affidavit by the physician or provider
that the records are complete, accurate, and without alteration.
Sec. 2.04. QUALIFICATIONS OF EXPERT. (a) A person who
prepares an expert report regarding a physician must be qualified
to testify under Section 14.01(a) of this Act.
(b) A person who prepares an expert report regarding a
nonphysician health care provider must have knowledge of accepted
standards of care for the diagnosis, care, or treatment of the
illness, injury, or condition involved in the claim against the
provider.
Sec. 2.05. CONTENTS OF EXPERT REPORT. An expert report
prepared under this subchapter must provide a fair summary of the
expert's opinions as of the date of the report regarding:
(1) applicable standards of care;
(2) the manner in which the care rendered by the
physician or health care provider failed to meet the standards; and
(3) the causal relationship between that failure and
the injury, harm, or damages claimed.
Sec. 2.06. SELECTION OF MEDIATOR; SUBMISSION OF CLAIM AND
RESPONSE. (a) Not later than the 30th day after the date a request
for mediation is served under Section 2.01 of this Act, the claimant
and the physician or health care provider who receives the request
shall select a mediator to conduct mediation through the procedure
described by Section 2.07 of this Act.
(b) If the claimant and the physician or health care
provider fail to select a mediator in the time provided under
Subsection (a) of this section, the claimant or the physician or
provider may file a petition in a district court requesting the
court to refer the dispute to a mediator. The petition may only be
filed in a court in which the health care liability claim against
the physician or provider could properly be filed.
(c) The court shall refer the dispute before the 31st day
after the date the petition is filed.
(d) Not later than the fifth day after the date a mediator is
selected or appointed under this section:
(1) the claimant shall submit to the mediator:
(A) a specific written statement of the nature of
the claim; and
(B) the expert report prepared under Section 2.01
of this Act; and
(2) the recipient shall submit to the mediator a
written response to the statement and the expert report.
Sec. 2.07. FORUM FOR CONDUCTING MEDIATION. Mediation
required by this subchapter must be conducted through:
(1) an alternative dispute resolution system
established under Chapter 152, Civil Practice and Remedies Code;
(2) a dispute resolution organization described by
Section 154.001, Civil Practice and Remedies Code; or
(3) a nonjudicial and informally conducted forum for
the voluntary settlement of citizens' disputes through the
intervention of an impartial third party, including the mediation
procedures described by Subchapter B, Chapter 154, Civil Practice
and Remedies Code.
Sec. 2.08. WRITTEN AGREEMENT. (a) If the parties to
mediation under this subchapter reach an agreement, the mediator
shall:
(1) issue a written statement specifying the terms of
the agreement; and
(2) provide a copy of the written agreement to each
party to the mediation.
(b) A written agreement issued under Subsection (a) of this
section is not effective unless all parties to the mediation sign
the agreement before the seventh working day after the date the
agreement is issued.
(c) A written agreement issued and signed under this section
is enforceable by court order.
Sec. 2.09. COSTS. A person who makes a health care
liability claim shall pay all costs associated with conducting the
mediation required by this subchapter.
Sec. 2.10. TOLLING OF STATUTE OF LIMITATIONS. The statute
of limitations governing a health care liability claim is tolled
beginning on the date the claimant provides notice of the claim
under Section 2.01 of this Act and ending on the 360th day after
that date.
SECTION 2. Section 13.01 and Subchapter D, Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes), are repealed.
SECTION 3. The changes in law made by this Act apply only to
a cause of action that accrues on or after the effective date of
this Act. A cause of action that accrues before the effective date
of this Act is governed by the law in effect immediately before that
date, and that law is continued in effect for that purpose.
SECTION 4. This Act takes effect September 1, 2003.