2003S0224-1 02/07/03


By:  Lindsay                                                      S.B. No. 436

A BILL TO BE ENTITLED
AN ACT
relating to procedures regarding health care liability claims filed against physicians and health care providers. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. 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 concurrently with the filing of any original petition in a court action also[, not later than the 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) deposit [place] cash in the registry of the court [an escrow account] in the amount of $5,000 for each physician or health care provider named in the action; or (3) file an expert report for each physician or health care provider 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) In any action in which a health care liability claim is asserted, a petition may not be accepted for filing if the petition fails to comply with Subsection (a) of this section as to each defendant named in the petition. A petition that does not comply with that subsection shall be returned promptly to the claimant or to the claimant's attorney and may not be considered in connection with any applicable limitations period as to any defendant named in the noncomplying petition. For the purposes of this subsection, any defendant named in a petition that includes a health care liability claim shall be presumed to be either a physician or a health care provider, regardless of whether that defendant is or is not a physician or a health care provider [If, as to a defendant physician or health care provider, an expert report, cost bond, or cash in lieu of bond has not been 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) 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) 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, subject to reinstatement in accordance with the applicable rules of civil procedure and Subsection (c) of this section]. (c)(1) Not later than the 30th day after the date on which a defendant receives service of the citation, the defendant may file a motion challenging the sufficiency of an expert report that applies to that defendant. A motion to strike an expert report shall be granted if the court finds that the report does not represent a good faith effort to comply with this section, including each requirement of Subsection (p)(6) of this section. (2) If the court determines that the expert report does not fully comply with Subsection (p)(6) of this section but represents a good faith effort to comply, the court shall allow the claimant 60 days in which to cure any deficiency found to exist in the report or to file a bond in the amount of $7,500 or deposit cash in the registry in the amount of $7,500 for the respective defendant. The 60-day period shall begin on the date that the order is signed granting the challenge. (3) If the court determines that the challenged expert report does not represent a good faith effort to comply with this section or if the claimant fails to comply with the requirements of any order allowing the claimant to cure any deficiency found, the claimant's claim against the respective defendant shall be dismissed without prejudice. The order of dismissal shall include an award of reasonable attorney's fees and costs incurred by the respective defendant in answering the lawsuit and challenging the sufficiency of the report. The dismissed claim shall not be used to toll or extend any applicable limitations period. (4) If not challenged under this section, an expert report shall be presumed to be sufficient to comply with the requirements of Subsection (a) of this section, allowing the petition to be accepted for filing [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)(1) If an expert report was filed to comply with Subsection (a) of this section and the report was challenged by the defendant's motion as provided by Subsection (c)(1) of this section and found by the court to be sufficient or if additional time was allowed as provided by Subsection (c)(2) of this section and the claimant met the requirements for the order allowing for additional time, then no additional challenge may be filed by the respective defendant in connection with the requirements established by Subsection (d) of this section. If no motion was filed by a defendant challenging the sufficiency of a report filed under Subsection (a) of this section, then not later than the 30th day after the 180th day after a health care liability claim is filed or the last day of any extended period established under Subsection (f) of this section, a defendant may challenge the sufficiency of any expert report in connection with Subsection (d) of this section. An expert report filed in connection with Subsection (a) of this subsection that was not previously challenged as provided by Subsection (c) of this section shall be considered to be an expert report filed in connection with Subsection (d) of this section. If a second report is filed, the claimant may request that both reports be considered together to meet the requirements of Subsection (d) of this section. (2) If the court determines that the expert report does not fully comply with Subsections (d) and (p)(6) of this section but represents a good faith effort to comply, the court shall allow the claimant 60 days in which to cure any deficiency found to exist in the report. The 60-day period shall begin on the date the order is signed granting the challenge [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. (i) Notwithstanding any other provision of this section, a claimant may satisfy any requirement of this section for filing an expert report by filing reports of separate experts regarding different physicians or health care providers or regarding different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation. Nothing in this section shall be construed to mean that a single expert must address all liability and causation issues with respect to all physicians or health care providers or with respect to both liability and causation issues for a physician or health care provider. (j) Nothing in this section shall be construed to require the filing of an expert report regarding any issue other than an issue relating to liability or causation. (k) [Notwithstanding any other law, an expert report filed under this section: [(1) is not admissible in evidence by a defendant; [(2) shall not be used in a deposition, trial, or other proceeding; and [(3) shall not be referred to by a defendant during the course of the action for any purpose. [(l) A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (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. (l) [(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. (m) [(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. (n) [(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. (o) [(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. (p) [(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. (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 14.01(a) of this Act; or (B) with respect to a person giving opinion testimony about a nonphysician health care provider, an expert who has knowledge of accepted standards of care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim. (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 2. This Act takes effect September 1, 2003, and applies to a health care liability claim filed under Section 13.01, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), as amended by this Act, on or after the effective date of this Act. A health care liability claim filed 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.