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.