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By: Nelson S.B. No. 12
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. Sections 4.01(a) and (c), Medical Liability and
Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
Civil Statutes), are amended to read as follows:
(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 not later
than the 90th day [at least 60 days] before the filing of a suit in
any court of this state based upon a health care liability claim.
(c) Notice given as provided in this Act shall toll the
applicable statute of limitations to and including a period of 90
[75] days following the giving of the notice, and this tolling shall
apply to all parties and potential parties.
SECTION 2. Section 10.01, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended to read as follows:
Sec. 10.01. LIMITATION ON HEALTH CARE LIABILITY
CLAIMS. (a) Except as provided by this section and notwithstanding
[Notwithstanding] any other law, no health care liability claim may
be commenced unless the action is filed on or before the second
anniversary of [within two years from] the occurrence of the breach
or tort or from the date the medical or health care treatment that
is the subject of the claim or the hospitalization for which the
claim is made is completed; provided that, minors under the age of
12 years shall have until their 14th birthday in which to file, or
have filed on their behalf, the claim. Except as herein provided,
this subchapter applies to all persons regardless of minority or
other legal disability.
(b) If the injury for which the claim is made cannot be
discovered by the claimant with reasonable diligence in the time
provided by Subsection (a), the claim may be filed on or before the
first anniversary of the earlier of the date on which the injury was
discovered or the date on which the claimant should have discovered
the injury with reasonable diligence.
SECTION 3. Section 11.02(a), Medical Liability and
Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
Civil Statutes), is amended to read as follows:
(a) In an action on a health care liability claim where
final judgment is rendered against a physician or health care
provider, the limit of civil liability [for damages] of the
physician or health care provider for all past and future
noneconomic losses recoverable by or on behalf of any injured
person or the injured person's estate, including past and future
physical pain and suffering, mental anguish and suffering,
consortium, disfigurement, and any other nonpecuniary damage, is
[shall be] limited to an amount not to exceed $250,000 [$500,000].
SECTION 4. The Medical Liability and Insurance Improvement
Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) is
amended by adding Subchapters Q, R, and S to read as follows:
SUBCHAPTER Q. COLLATERAL SOURCE BENEFITS
Sec. 17.01. DEFINITION. In this subchapter, "collateral
source benefit" means a benefit paid or payable to or on behalf of a
claimant under:
(1) the Social Security Act (42 U.S.C. Section 301 et
seq.);
(2) a state or federal income replacement, disability,
workers' compensation, or other law that provides partial or full
income replacement;
(3) any insurance policy, other than a life insurance
policy, including:
(A) an accident, health, or sickness insurance
policy;
(B) a disability insurance policy; and
(C) a property or casualty insurance policy,
including a motor vehicle or homeowners' insurance policy;
(4) an agreement under which a person, including a
health maintenance organization operating under a certificate of
authority issued under Chapter 843, Insurance Code, is obligated to
provide or pay for medical, hospital, dental, or other health care
services or similar benefits; or
(5) a contractual or voluntary wage continuation plan,
provided by an employer or other person, or any other system
intended to provide wages during a period of disability.
Sec. 17.02. ADMISSIBILITY OF EVIDENCE OF COLLATERAL SOURCE
BENEFITS. Evidence of a collateral source benefit is admissible in
an action on a health care liability claim if the benefit:
(1) has been paid or is substantially certain to be
paid to the claimant; and
(2) compensates the claimant for at least some of the
damages sought in the action.
Sec. 17.03. CONSIDERATION OF COLLATERAL SOURCE
BENEFITS. (a) The trier of fact shall consider collateral source
benefits admissible under Section 17.02 in determining the amount
of a judgment.
(b) The court shall consider collateral source benefits
admissible under Section 17.02 in reviewing a judgment for
excessiveness.
Sec. 17.04. PREMIUMS PAID FOR COLLATERAL SOURCE
BENEFITS. In determining the amount of a judgment, the trier of
fact may consider premiums personally paid by a claimant to obtain
coverage that provides a collateral source benefit that has been
paid or that is payable.
Sec. 17.05. EVIDENCE OF TAX IMPLICATION OF DAMAGE
AWARDS. The trier of fact shall be informed of the tax
implications of an award of damages for a claim for which collateral
source benefits were received.
SUBCHAPTER R. PAYMENT FOR FUTURE LOSSES
Sec. 18.01. SCOPE OF SUBCHAPTER. This subchapter applies
only if the total award of future damages in an action on a health
care liability claim against a physician or health care provider
exceeds $50,000.
Sec. 18.02. PERIODIC PAYMENT. (a) The court shall order
future damages awarded in a health care liability claim to be paid
in periodic installments, in the amounts, and over the period of
time determined by the judge.
(b) The total amount paid may not exceed the amount of the
award for future damages specified in the findings of the trier of
fact.
(c) Payments for future damages for medical and other health
care costs, for economic loss other than the costs of medical or
other health care and loss of earning capacity, and for noneconomic
loss terminate on the death of the claimant.
(d) The total amount of payments for future damages for loss
of earning capacity owed but not yet paid to the claimant at the
time of the claimant's death shall be paid to the estate of the
claimant in a lump-sum amount based on the present discounted value
of the total as determined by a court.
SUBCHAPTER S. ATTORNEY'S FEES
Sec. 19.01. LIMITATIONS ON CONTINGENCY
FEES. Notwithstanding a contract between a claimant and an
attorney, an attorney who represents a claimant in a health care
liability claim may not receive attorney's fees for the
representation that exceed:
(1) 40 percent of the lesser of:
(A) the amount awarded to the claimant; or
(B) $50,000; plus
(2) 33–1/3 percent of the lesser of:
(A) the amount by which the award exceeds
$50,000; or
(B) $50,000; plus
(3) 25 percent of the lesser of:
(A) the amount by which the award exceeds
$100,000; or
(B) $500,000; plus
(4) 15 percent of the amount by which the award exceeds
$600,000.
SECTION 5. Sections 11.01, 11.03, and 11.04, Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes), are repealed.
SECTION 6. (a) 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 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 the effective date of this Act, and
that law is continued in effect for that purpose.
(b) 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 attorney's fees for
representing a claimant in an action filed on or after the effective
date of this Act. Attorney's fees in an action filed before the
effective date of this Act are governed by the law in effect
immediately before that date, and that law is continued in effect
for that purpose.
SECTION 7. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2003.