2003S0583-1 03/11/03
By: Janek S.B. No. 1598
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. Subchapter A, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Section 1.04 to read as follows:
Sec. 1.04. APPLICABILITY OF OTHER LAW. To the extent of any
conflict between this Act and Article 4590m, Revised Statutes,
related to health care liability claims against physicians, Article
4590m, Revised Statutes, prevails.
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) of this section, 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, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by amending Subsections (a) and (b) and
adding Subsections (e) and (f) 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, loss of
consortium, disfigurement, and any other nonpecuniary damage, is
[shall be] limited to an amount not to exceed $250,000 [$500,000].
(b) Subsections [Subsection] (a) and (e) of this section do
[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.
(e) In an action on a health care liability claim where
final judgment is rendered against a physician or health care
provider and one or more agents or employees of the physician or
health care provider, and where the liability of the physician or
health care provider is based exclusively on a theory of vicarious
liability for the act or omission of the agents or employees, the
combined total civil liability of the physician or health care
provider and the agents or employees shall be limited to an amount
not to exceed the limit under Subsection (a) of this section, as
adjusted under Section 11.04 of this subchapter.
(f) The limit on liability in Subsections (a) and (e) of
this section:
(1) applies to the final judgment that is rendered
against a physician or health care provider in relation to an
occurrence of treatment, lack of treatment, or other departure from
accepted standards of medical care or health care or safety that
resulted in injury to or death of a patient, without regard to the
number of health care liability claims filed in relation to the
occurrence; and
(2) may not be exceeded on the basis that more than one
health care liability claim is filed in relation to the occurrence.
SECTION 4. Subchapter K, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Section 11.06 to read as follows:
Sec. 11.06. APPLICABILITY OF JOINT AND SEVERAL LIABILITY
REQUIREMENTS. Notwithstanding Section 33.013(b), Civil Practice
and Remedies Code, a physician or health care provider is not
jointly liable for damages attributed to any other person, without
regard to whether the percentage of responsibility attributed to
the physician or health care provider is greater than 50 percent.
SECTION 5. Subsections (b) through (e) and (n), Section
13.01, Medical Liability and Insurance Improvement Act of Texas
(Article 4590i, Vernon's Texas Civil Statutes), are amended to read
as follows:
(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
filed or deposited within the period specified by Subsection (a)
[or (h)] of this section:
(1) the statute of limitations is not tolled; and
(2) [,] the court, on the motion of the affected
physician or health care provider, shall enter an order dismissing
[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) Before a claim that has been dismissed under Subsection
(b) [(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:
(1) the statute of limitations is not tolled; and
(2) [,] 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:
(A) [(1)] the reasonable attorney's fees and
costs of court incurred by that defendant; and
(B) [(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.
(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 to [shall] pay the movant
reasonable attorney's fees incurred in obtaining relief under this
subsection.
SECTION 6. Subsection (a), Section 14.01, Medical Liability
and Insurance Improvement Act of Texas (Article 4590i, Vernon's
Texas Civil Statutes), is amended to read as follows:
(a) In a suit involving a health care liability claim
against a physician for injury to or death of a patient, a person
may qualify as an expert witness on the issue of whether the
physician departed from accepted standards of medical care only if
the person is a physician who is licensed as a physician in the
United States and:
(1) is practicing medicine and is board certified in
the same field as the physician who is the subject of the testimony
at the time such testimony is given or was practicing medicine and
was board certified in the same field as the physician who is the
subject of the testimony at the time the claim arose;
(2) has knowledge of accepted standards of medical
care 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 medical care.
SECTION 7. Subchapter N, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is amended by adding Section 14.02 to read as follows:
Sec. 14.02. QUALIFICATION OF EXPERT WITNESS IN SUIT AGAINST
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 who is the subject of the
testimony at the time the testimony is given or was practicing
health care in the same field of practice as the health care
provider who is the subject of the testimony 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 care.
(b) For the purposes of this section, "practicing health
care" includes 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 state or national 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 this
section in determining whether an expert is qualified to offer
expert testimony on the issue of whether a 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 a 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) 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 date of the witness's deposition.
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.
(f) This section does not prevent a health care provider who
is a defendant from qualifying as an expert.
SECTION 8. 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.) and its subsequent amendments;
(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 of this subchapter in determining
the amount of a judgment.
(b) The court shall consider collateral source benefits
admissible under Section 17.02 of this subchapter in reviewing a
judgment for excessiveness.
Sec. 17.04. PREMIUMS PAID FOR COLLATERAL SOURCE BENEFITS.
Except for premiums on insurance that is required by law, 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.
Sec. 17.06. NOTICE TO CONTRACTUAL LIENHOLDER; RIGHT OF
SUBROGATION. On or before the 10th day after the date a judgment
for the claimant is entered, the claimant's attorney shall send
notice of the judgment by registered mail to any person entitled by
contract to a lien against the proceeds of the claimant's recovery.
If a contractual lienholder does not exercise the lienholder's
right of subrogation on or before the 20th day after the date notice
is received under this subsection, the lienholder loses the right
of subrogation.
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, regardless of whether the recovery of damages is
by:
(1) judgment;
(2) settlement; or
(3) mediation, arbitration, or any other form of
alternative dispute resolution.
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) On the death of the claimant, payments terminate for all
future damages awarded except damages for loss of earning capacity.
(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. APPLICABILITY. This subchapter applies to any
health care liability claim brought in a court regardless of
whether the recovery of damages is by:
(1) judgment;
(2) settlement; or
(3) mediation, arbitration, or any other form of
alternative dispute resolution.
Sec. 19.02. COURT AUTHORITY TO SUPERVISE CONTINGENCY FEES.
(a) In a health care liability claim, the court shall supervise
the arrangements for payment of damages to protect against
conflicts of interest that might have the effect of reducing the
amount of the damages awarded that are actually paid to a claimant.
(b) In a health care liability claim in which the attorney
for a party receives a contingency fee based on the amount of the
damage recovery, the court:
(1) may restrict the payment of a claimant's damage
recovery to the claimant's attorney and redirect the remaining
damages to the claimant in the interests of justice and principles
of equity;
(2) shall supervise the payment of attorney's fees in
accordance with Section 19.03 of this subchapter; and
(3) may, in a suit involving a minor or incompetent
person, authorize or approve a fee that is less than the maximum
permitted under Section 19.03 of this subchapter.
Sec. 19.03. 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 9. Chapter 21, Title 71, Revised Statutes, is
amended by adding Article 4590m to read as follows:
Art. 4590m. HEALTH CARE LIABILITY CLAIMS AGAINST PHYSICIANS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1.01. FINDINGS AND PURPOSE. (a) A critical shortage
of physicians and other health care providers threatens the health
and safety of the citizens of this state and arises from numerous
factors, including:
(1) increasing numbers of jury awards to plaintiffs in
medical malpractice cases that not only provide reasonable
compensation for economic damages, including costs of past,
present, and future medical care and loss of earnings resulting
from the injury, but also include disproportionately large awards
for "pain and suffering," a noneconomic category of damages that is
difficult to quantify;
(2) large numbers of suits brought against physicians
that are groundless, but are more expensive to defend against than
to settle;
(3) a dramatic increase in malpractice insurance
rates, especially for physicians and other health care providers
and most notably for those whose practices are in high-risk areas,
including obstetrics and surgery;
(4) a parallel increase in the number of physicians
and other health care providers who are limiting their practices to
areas of lower risk or who are leaving this state to practice in
states where malpractice insurance is more readily available and
affordable; and
(5) a simultaneous marked decline in the number of
companies offering malpractice insurance in this state.
(b) To avert the impending crisis in health care services in
this state, to preserve the necessary number of health care
providers, and to encourage new physicians to establish practices
in this state, the purposes of this article are to:
(1) revise the pretrial procedures that control
medical malpractice claims in order to discourage groundless
claims;
(2) encourage the pretrial settlement of meritorious
claims;
(3) establish more responsible limits on the time
allowed for filing a malpractice claim;
(4) establish new procedures related to the use of
expert opinions;
(5) revise the manner and amount of jury awards in
order to make the awards fairer, more timely, and more realistic;
(6) enact other reforms that will protect physicians
and other health care providers who perform volunteer services or
who prescribe drugs or devices that have been approved by the United
States Food and Drug Administration; and
(7) maintain access to quality health care services
for all residents of this state.
Sec. 1.02. DEFINITIONS. (a) With the exception of terms
defined by Subsection (b) of this section, in this article each term
has the meaning assigned by Section 1.03, Medical Liability and
Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
Civil Statutes), if defined by that section.
(b) In this article:
(1) "Claimant" means a person who files a complaint
under this article with the department alleging medical malpractice
and consequent injury to the claimant. The term includes a person
who files the complaint on behalf of another person.
(2) "Commissioner" means the commissioner of
insurance.
(3) "Complaint" means the allegation of medical
malpractice and consequent injury that a claimant files under
Section 3.01 of this article.
(4) "Defendant" means a physician who a claimant or
plaintiff alleges is liable for damages resulting from the
defendant's malpractice.
(5) "Department" means the Texas Department of
Insurance.
(6) "Expert witness" has the meaning assigned to
"expert" by Section 13.01(r)(5)(A), Medical Liability and
Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
Civil Statutes).
(7) "Medical malpractice" means the failure of a
physician, in rendering services, to act in accordance with the
standard of what a reasonable and prudent physician holding the
same type of medical license would have done under the same or
similar circumstances.
(8) "Plaintiff" means a person who files a health care
liability claim in court asserting medical malpractice and
consequent injury. The term includes a person who files the claim
on behalf of another person.
(9) "Review panel" means a panel of one judge and two
physicians that reviews a complaint under this article.
Sec. 1.03. APPLICABILITY OF ARTICLE. This article applies
only to a health care liability claim against a physician.
Sec. 1.04. APPLICABILITY OF OTHER LAW. To the extent of any
conflict between this article and another law related to health
care liability claims, this article prevails.
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
Sec. 2.01. DEPARTMENT RESPONSIBILITY. The department shall
administer all provisions of this article, except as otherwise
specifically provided by this article.
Sec. 2.02. PANEL MEMBER POOL. (a) The department shall
maintain a pool of judges and physicians from which to select
tentative review panels.
(b) For the physicians' pool, the department shall
quarterly obtain from the Texas State Board of Medical Examiners an
updated list of physicians licensed by this state, by specialty and
subspecialty and by location of practice. The list may not include
a physician who has been disciplined or who is under investigation
by the Texas State Board of Medical Examiners.
(c) For the judges' pool, the department shall semiannually
obtain from the Office of Court Administration of the Texas
Judicial System a list of civil judges by location of the court.
Sec. 2.03. REVIEW PANEL COMPENSATION. (a) A member of a
review panel is not entitled to compensation, but is entitled to
reimbursement of reasonable expenses incurred in the performance of
duties associated with serving on the panel.
(b) The department shall reimburse a review panel member
who, in the manner specified by the department, submits an
accounting of expenses incurred.
Sec. 2.04. MEDICAL MALPRACTICE REVIEW PANEL ACCOUNT.
(a) The department shall deposit any money collected under this
article to the credit of the medical malpractice review panel
account. The medical malpractice review panel account is an
account in the general revenue fund that may be appropriated to the
department only for the purpose of administering this article. The
account is exempt from the application of Section 403.095,
Government Code.
(b) The department shall, to the extent possible, pay costs
incurred in the administration of this article from the medical
malpractice review panel account.
(c) If the department requires more money for the
administration of this article than is available in the medical
malpractice review panel account, the department may increase fees
charged under this article in an amount necessary and reasonable to
administer this article.
Sec. 2.05. SCHEDULING HEARINGS. The department shall
schedule hearings of a review panel and make all necessary
arrangements.
Sec. 2.06. COURSES OF INSTRUCTION FOR PANEL MEMBERS.
(a) The commissioner shall arrange for courses of instruction in
the rules of procedure and substantive law appropriate for members
of a review panel.
(b) Each person designated to serve on a tentative review
panel on or after September 1, 2004, shall attend the instruction
provided under Subsection (a) of this section before serving on a
review panel.
Sec. 2.07. DEPARTMENT RULES. The department may adopt
rules necessary to implement this article.
SUBCHAPTER C. FILING OF COMPLAINT, ANSWER, AND RESPONSE; FEES
Sec. 3.01. SUBMISSION OF COMPLAINT REQUIRED BEFORE ACTION
MAY BE FILED. (a) Before a person may file a health care liability
claim in court, the person must file a complaint with the department
for evaluation by a review panel.
(b) A health care liability claim filed without satisfying
the provisions of this article must be dismissed for failure to
comply with this section.
Sec. 3.02. CONTENTS OF COMPLAINT; FILING FEE. (a) A
complaint must contain:
(1) a clear and concise statement of the facts of the
case, including the persons involved and the dates and
circumstances, so far as they are known, of the alleged medical
malpractice; and
(2) a signed affidavit supporting the allegations of
the complaint submitted by a person:
(A) who holds a medical license issued by this
state in the same specialty or subspecialty as the person against
whom the complaint is made; and
(B) who meets the other qualifications of an
expert witness under Section 14.01(a), Medical Liability and
Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
Civil Statutes).
(b) A fee of $500 must accompany the complaint.
Sec. 3.03. ANSWER; FILING FEE. (a) The person against
whom a complaint is filed shall file an answer, accompanied by a fee
of $500, with the department on or before the 30th day after the
date the person receives a copy of the complaint.
(b) The department may authorize an extension of the time in
which an answer must be filed only if all parties to the complaint
agree to the extension.
(c) A respondent who does not timely file an answer may not
participate in any conference held under Section 4.02 of this
article.
Sec. 3.04. CLAIMANT RESPONSE TO ANSWER. (a) The claimant
may respond to the allegations of the answer or any accompanying
affidavit by filing a written response with the department on or
before the 15th day after the date the claimant received the answer.
(b) The review panel shall disregard any portion of the
response that does not address an allegation raised in the answer or
an affidavit accompanying the answer.
(c) The department may not charge a fee for the filing of a
response.
Sec. 3.05. LATE FILINGS NOT ACCEPTED. Unless otherwise
agreed to by all parties, the department may not accept an answer or
response that is not timely filed.
Sec. 3.06. FEES PAYABLE ONLY ONCE. The department may not
charge or collect fees under this subchapter more than once:
(1) from a party; or
(2) for the filing of a complaint, regardless of the
number of parties joined in the complaint.
Sec. 3.07. FAILURE TO PAY FEE. If a person fails to pay any
fee required by this subchapter, the commissioner may refer the
nonpayment to the office of the attorney general for collection of
the fee and any costs incurred in that collection.
Sec. 3.08. SUBMISSION PROCEDURES. A person required to
file a submission with the department under this article shall
deliver a copy of the submission to the opposing party by a method
of service allowed under Rule 106, Texas Rules of Civil Procedure.
Sec. 3.09. COLLECTION OF MATERIALS RELATED TO COMPLAINT.
(a) The parties shall collect and file with a complaint any
materials related to the complaint required by the parties or the
review panel, including health care records and any other documents
necessary for the review.
(b) The review panel may request that the department collect
additional material required for the review.
SUBCHAPTER D. REVIEW PANEL SELECTION
Sec. 4.01. TENTATIVE REVIEW PANEL. (a) The department
shall assemble a tentative review panel for each complaint,
selecting, as much as possible, panel members from the same
geographic area.
(b) The tentative review panel shall consist of three judges
and six physicians licensed in the same specialty or subspecialty
as the defendant.
(c) The department may excuse a member of a tentative review
panel who, for good cause, is unable to serve on a review panel.
(d) The department shall send to the parties to a complaint,
by registered or certified mail, a list of the members of the
tentative review panel on or before the 10th day after the date the
complaint is filed.
Sec. 4.02. SELECTION OF MEMBERS FOR PARTICULAR REVIEW
PANEL. (a) On or before the 20th day after the last date on which
an answer may be filed, the department shall hold a conference to
resolve any challenges for cause concerning members of a tentative
review panel. The department may continue the conference once, for
good cause, for a period not to exceed seven days. A party may
challenge any person on the tentative review panel for cause on any
of the grounds provided by Section 62.105, Government Code, for the
disqualification of jurors.
(b) The department shall determine whether cause exists to
excuse a member of the tentative review panel and shall notify each
party of the excused member on or before the completion of the
conference under Subsection (a) of this section.
(c) For each tentative review panel member excused, the
department shall appoint another person who, as much as possible,
meets the requirements of that panel position under Section 4.01 of
this subchapter.
(d) At the end of all challenges for cause, the plaintiff
and the defendant are each by turns entitled to three peremptory
challenges to remove one judge and two physicians from the
tentative review panel until a review panel composed of one judge
and two physicians remains. The remaining panel members constitute
the review panel for the complaint.
(e) If the department is unable to assemble a full tentative
review panel because of the exercise of challenges for cause or
other reasons affecting the availability of members to serve, the
department may limit the number of peremptory challenges available
to each party.
SUBCHAPTER E. DEPARTMENT POWERS AND DUTIES; ENFORCEMENT
Sec. 5.01. SUBPOENA POWER, EXPERT WITNESSES, PRODUCTION OF
MATERIALS. (a) The department may, by certified or registered
mail, issue a subpoena:
(1) if required by the review panel, to compel the
attendance of an expert witness; or
(2) if required by a party or the review panel, to
compel the production of books, papers, health care records,
statements of policy and procedure, or other materials.
(b) The department shall keep the material collected under
Subsection (a) of this section and make it available to the parties,
on request, for inspection or copying. If the material is
reasonably capable of being copied, the department shall provide a
copy to a party on request and receipt of a fee for the copying.
(c) If an expert witness refuses to attend or testify, or if
a person refuses to produce material required by a subpoena, the
department may petition a court for an order compelling the expert
witness to attend and testify or the person to produce the material.
The petition shall state that:
(1) notice has been given of the time and place of
attendance of the expert witness or for the production of the
material;
(2) the expert witness or the person required to
produce the material has been subpoenaed by the department under
this section; and
(3) the expert witness has failed or refused to attend
or to answer the questions asked or the person has failed or refused
to produce the material required by the subpoena.
Sec. 5.02. COURT ORDERS. (a) A court that receives a
petition under Section 5.01 of this subchapter shall:
(1) enter an order directing the expert witness or
other person to appear before the court on or before the 10th day
after the date of the order and show cause for the failure to
attend, testify, answer, or produce the material; and
(2) require service of a certified copy of the order on
the expert witness or other person.
(b) If the court finds that the subpoena was properly issued
by the department, the court shall enter an order that the expert
witness or other person appear at the time and place stated in the
order and testify or produce the required material.
(c) A person who disobeys an order under Subsection (b) of
this section is subject to contempt of court.
SUBCHAPTER F. REVIEW PANEL HEARINGS; FINDINGS
Sec. 6.01. PREFERENTIAL SCHEDULING OF HEARINGS FOR CERTAIN
CLAIMANTS. (a) If a claimant is 70 years of age or older or
suffers from an illness or condition that raises a substantial
medical doubt that the claimant will survive until a review panel
makes a decision, the claimant may file a written request with the
department to give preference in scheduling the claimant's hearing.
The request must set forth facts showing that the claimant meets the
conditions for preferential scheduling under this section.
(b) The department shall schedule the hearings of
complaints for which preference has been granted under Subsection
(a) of this section based on the order in which the department
receives requests for preference.
(c) A request for preferential scheduling may be submitted
simultaneously with the filing of the original complaint.
Sec. 6.02. HEARING BY REVIEW PANEL. (a) A review panel
shall hear a complaint on or before the 30th day after the date the
review panel was selected.
(b) The review panel shall consider as evidence:
(1) all the documentary material, including the
complaint, answer, and response;
(2) health care records and records of a hospital or
office; and
(3) testimony of any expert witnesses the panel
considers necessary.
(c) From the evidence, the review panel shall determine only
whether there is a reasonable probability that the acts complained
of constitute medical malpractice and whether the claimant was
injured by those acts.
(d) The review panel may not consider:
(1) any pleading or paper to the extent that it
addresses a legal issue presented by the complaint or a legal
argument of a party; or
(2) challenges concerning any relevant statute of
limitation relating to a complaint before the panel.
Sec. 6.03. DECISION OF REVIEW PANEL. (a) The decision of
the review panel must be based on a vote of the members of the panel
made by written ballot. Each member of the panel has one vote.
(b) The review panel shall render its decision in writing on
or before the fifth day after the date of the hearing.
(c) The decision must be substantially in the following
form:
(1) "Based on a review of the materials submitted by
the parties and the testimony of medical or other experts, we find
that there is a reasonable probability of medical malpractice and
that the claimant was injured by the malpractice.";
(2) "Based on a review of the materials submitted by
the parties and the testimony of medical or other experts, we find
that there is not a reasonable probability of medical
malpractice."; or
(3) "Based on a review of the materials submitted by
the parties and the testimony of medical or other experts, we are
unable to reach a decision on the issue of medical malpractice."
(d) The review panel may reach a decision if two members of
the panel agree that:
(1) there was a reasonable probability of medical
malpractice and injury; or
(2) there was not a reasonable probability of medical
malpractice.
(e) The commissioner shall forward copies:
(1) of the original complaint and of the review panel's
decision to the Texas State Board of Medical Examiners; and
(2) of the panel's decision to the parties.
Sec. 6.04. PANEL DECISION ADMISSIBLE IN COURT; EXCEPTION.
(a) Except as provided by Subsection (b) of this section, a
decision of a review panel is admissible in an action concerning the
complaint that is subsequently filed in court.
(b) If the review panel is unable to reach a decision on the
issue of medical malpractice, that fact is not admissible in an
action concerning the complaint that is subsequently filed in
court.
(c) Other than the review panel's decision, evidence
concerning the review panel or its deliberations is not
discoverable or admissible, and a member of the panel may not be
called to testify in the action.
Sec. 6.05. EFFECT OF REVIEW PANEL'S DECISION; PARTIES TO
ACTION. (a) If the review panel finds in favor of the claimant and
an action involving that claimant's complaint is filed, an
alternative dispute resolution method of settlement must be held as
provided by Section 7.01 of this article.
(b) If the review panel does not find in favor of the
claimant, the claimant may file an action in court. If the court
judgment does not favor the claimant, the defendant must be awarded
reasonable costs and attorney's fees incurred in defense against
the complaint and the court action.
(c) If the review panel is unable to reach a decision, the
claimant may file an action in court.
(d) If the claimant files an action in court, a physician
may not be named as a party in the action unless the physician was
named as a party in the complaint that was filed with the department
and considered by the review panel.
SUBCHAPTER G. CLAIM SETTLEMENT
Sec. 7.01. ALTERNATIVE DISPUTE RESOLUTION. (a) In an
action for medical malpractice filed after a review panel's
decision favorable to the plaintiff, the court shall require the
parties to follow the alternative dispute resolution procedures
required by the rules of the court.
(b) If the court does not have required alternative dispute
resolution procedures, the parties shall agree on an alternative
dispute resolution method under Chapter 154, Civil Practice and
Remedies Code, and, before trial may begin except for good cause
shown, shall agree on an amount of money for which the parties are
willing to settle the dispute.
(c) The judge, except for good cause shown, shall dismiss an
action if the parties fail to complete alternative dispute
resolution procedures under this section.
Sec. 7.02. OFFER TO SETTLE; AWARD OF COSTS AND ATTORNEY'S
FEES. (a) On or before the 14th day after the date the alternative
dispute resolution concludes without settling the claim, the
plaintiff shall make an offer to settle for an amount the plaintiff
will accept in full payment of the claim.
(b) The defendant shall accept or reject the plaintiff's
offer on or before the 30th day after the date the offer was
received.
(c) If the defendant rejects the plaintiff's offer and at
trial the plaintiff is awarded an amount greater than the amount of
the plaintiff's offer, the court shall award the plaintiff
reasonable expert witness fees incurred at trial and court costs.
Sec. 7.03. REFUSAL OF DEFENDANT'S INSURER TO SETTLE. If the
defendant's insurer refuses to settle under Section 7.02 of this
subchapter, the insurer may not at the time for renewal of the
coverage:
(1) raise the insurance rates of the defendant for the
same type of coverage; or
(2) drop the defendant from coverage.
Sec. 7.04. MODIFICATION BY AGREEMENT OF PARTIES. The
plaintiff is entitled to modify the procedures under Section 7.01
of this subchapter by written agreement with the defendant.
SUBCHAPTER H. JURY INSTRUCTIONS
Sec. 8.01. INSTRUCTIONS TO JURY. Unless the decision of the
review panel is not admissible under Section 6.04 of this article,
in an action for medical malpractice tried before a jury, the
following instructions must be given:
(1) If the review panel heard testimony of a medical
expert:
"During the course of this trial certain evidence was
admitted concerning the decision of a review panel. The decision of
the panel was based on a review of medical records and the testimony
of a medical expert based on the expert's review of those records.
That decision is to be given the same weight as any other evidence
but is not conclusive on your determination of the case."
(2) If the review panel did not hear testimony of a
medical expert:
"During the course of this trial certain evidence was
admitted concerning the decision of a review panel. The decision of
the panel was based solely on a review of medical records and an
expert report. That decision is to be given the same weight as any
other evidence but is not conclusive on your determination of the
case."
SUBCHAPTER I. TOLLING OF STATUTE OF LIMITATIONS
Sec. 9.01. TOLLING OF STATUTE OF LIMITATIONS. The statute
of limitations under Section 10.01, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), is tolled from the date a complaint is filed until the
earlier of:
(1) the date the parties receive their copies of the
review panel's decision under Section 6.03(e) of this article; or
(2) the 180th day after the date the complaint is
filed.
SECTION 10. Section 74.001, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 74.001. LIABILITY FOR EMERGENCY CARE. (a) Except as
provided by this section, a [A] person who in good faith administers
emergency care, including using an automated external
defibrillator, without remuneration and without expectation of
remuneration [at the scene of an emergency but not in a hospital or
other health care facility or means of medical transport] is not
liable in civil damages for an act performed during the emergency
unless the act is wilfully or wantonly negligent.
(b) This section does not apply to [care administered:
[(1) for or in expectation of remuneration; or
[(2) by a person who was at the scene of the emergency
because he or a person he represents as an agent was soliciting
business or seeking to perform a service for remuneration.
[(c) If the scene of an emergency is in a hospital or other
health care facility or means of medical transport, a person who in
good faith administers emergency care is not liable in civil
damages for an act performed during the emergency unless the act is
wilfully or wantonly negligent, provided that this subsection does
not apply to care administered]:
(1) [by] a person who regularly administers care in a
hospital emergency room for or in expectation of remuneration;
[unless such person is at the scene of the emergency for reasons
wholly unrelated to the person's work in administering health care;
or]
(2) [by] an admitting or attending physician of the
patient; or
(3) a person who regularly administers emergency care
in an emergency transport vehicle for or in expectation of
remuneration.
(c) [or a treating physician associated by the admitting or
attending physician of the patient in question.
[(d) For purposes of Subsections (b)(1) and (c)(1), a person
who would ordinarily receive or be entitled to receive a salary,
fee, or other remuneration for administering care under such
circumstances to the patient in question shall be deemed to be
acting for or in expectation of remuneration even if the person
waives or elects not to charge or receive remuneration on the
occasion in question].
[(e)] This section does not apply to a person whose
negligent act or omission was a producing cause of the emergency for
which care is being administered.
SECTION 11. Chapter 74, Civil Practice and Remedies Code,
is amended by adding Section 74.003 to read as follows:
Sec. 74.003. LIBERAL CONSTRUCTION. A court shall liberally
construe this chapter to encourage individuals to volunteer their
time and skills in administering emergency care during an
emergency.
SECTION 12. Section 82.001, Civil Practice and Remedies
Code, is amended by adding Subdivisions (5) through (14) to read as
follows:
(5) "Advanced practice nurse" has the meaning assigned
by Section 301.152, Occupations Code.
(6) "Dentist" means a person licensed to practice
dentistry under Subtitle D, Title 3, Occupations Code.
(7) "Device" has the meaning assigned by Section 201,
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 321), and
its subsequent amendments.
(8) "Drug" has the meaning assigned by Section 201,
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 321), and
its subsequent amendments.
(9) "Health care practitioner" means a physician,
dentist, podiatrist, optometrist, advanced practice nurse, or
physician assistant.
(10) "Optometrist" has the meaning assigned by Section
351.002, Occupations Code.
(11) "Physician" means a person licensed to practice
medicine in this state.
(12) "Physician assistant" means a person who holds a
license issued under Chapter 204, Occupations Code.
(13) "Podiatrist" means a person licensed to practice
podiatry under Chapter 202, Occupations Code.
(14) "Veterinarian" has the meaning assigned by
Section 801.002, Occupations Code.
SECTION 13. Chapter 82, Civil Practice and Remedies Code,
is amended by adding Section 82.007 to read as follows:
Sec. 82.007. EXEMPTION FROM LIABILITY FOR HEALTH CARE
PRACTITIONERS AND VETERINARIANS. In a products liability action,
including a class action, against the manufacturer or seller of a
drug or device, including a blood product, that has been approved by
the United States Food and Drug Administration:
(1) a person may not name as a defendant a health care
practitioner or veterinarian who prescribed the drug or device in
accordance with the standard of what a reasonable and prudent
health care practitioner or veterinarian holding the same license
would have done under the same or similar circumstances; and
(2) the health care practitioner or veterinarian who
prescribed the drug or device in accordance with the standard of
what a reasonable and prudent health care practitioner or
veterinarian holding the same license would have done under the
same or similar circumstances is not liable to a claimant.
SECTION 14. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 92 to read as follows:
CHAPTER 92. LIMITATION ON LIABILITY OF HEALTH CARE PROVIDERS AT
FREE MEDICAL CLINICS
Sec. 92.001. DEFINITION. In this chapter, "health care
provider" means a person licensed in this state or another state or
territory of the United States as:
(1) a physician;
(2) a physician assistant;
(3) a registered nurse;
(4) an advanced practice nurse;
(5) a licensed vocational nurse;
(6) a licensed medical physicist;
(7) a medical radiologic technologist;
(8) a dentist;
(9) a dental hygienist;
(10) an optometrist or therapeutic optometrist;
(11) an optician;
(12) a chiropractor;
(13) a licensed prosthetist;
(14) a licensed orthotist;
(15) an audiologist;
(16) a speech-language pathologist;
(17) a hearing instrument fitter and dispenser;
(18) a physical therapist;
(19) an occupational therapist;
(20) a psychologist;
(21) a social worker;
(22) a licensed professional counselor;
(23) a chemical dependency counselor;
(24) a licensed marriage and family therapist;
(25) an acupuncturist;
(26) a dietician;
(27) a midwife;
(28) an athletic trainer;
(29) a massage therapist;
(30) a licensed perfusionist;
(31) a pharmacist;
(32) a respiratory care practitioner; or
(33) a podiatrist.
Sec. 92.002. APPLICABILITY. This chapter applies only to
health care provided in a medical clinic that:
(1) is an organized, community-based program
providing health care without charge to persons unable to pay for
it;
(2) does not provide health care that includes the use
of general anesthesia or that requires an overnight stay in a health
care facility; and
(3) posts in a conspicuous place on its premises an
explanation of the limitation on liability provided by this
chapter.
Sec. 92.003. LIMITATION ON LIABILITY. A health care
provider is not liable in civil damages for an act performed during
the provision of the health care if:
(1) the health care is provided to a person at a
medical clinic to which this chapter applies and is part of the
services regularly offered by the clinic;
(2) the provider provides the health care in good
faith;
(3) the act is not wilfully or wantonly negligent;
(4) the health care provider does not receive a fee or
any other compensation for providing the health care; and
(5) the health care does not require the services of a
hospital or ambulatory surgical treatment center.
Sec. 92.004. VOLUNTARY CONTRIBUTIONS. The limitation on
liability established by this chapter applies without regard to
whether the medical clinic accepts a voluntary contribution from a
person receiving health care services from the clinic if:
(1) the person has acknowledged the person's ability
and willingness to pay a portion of the value of the health care
services provided; and
(2) the contribution is used only to pay overhead
expenses related to operating the clinic and not to provide a fee or
other compensation to a health care provider.
Sec. 92.005. LIMITATION IN ADDITION TO CHAPTER 84. The
limitation on liability established by this chapter is independent
of and in addition to any limitation on liability that may apply
under Chapter 84.
SECTION 15. Section 17.45, Business & Commerce Code, is
amended by adding Subdivisions (14) through (23) to read as
follows:
(14) "Advanced practice nurse" has the meaning
assigned by Section 301.152, Occupations Code.
(15) "Dentist" means a person licensed to practice
dentistry under Subtitle D, Title 3, Occupations Code.
(16) "Device" has the meaning assigned by Section 201,
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 321), and
its subsequent amendments.
(17) "Drug" has the meaning assigned by Section 201,
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 321), and
its subsequent amendments.
(18) "Health care practitioner" means a physician,
dentist, podiatrist, optometrist, advanced practice nurse, or
physician assistant.
(19) "Optometrist" has the meaning assigned by Section
351.002, Occupations Code.
(20) "Physician" means a person licensed to practice
medicine in this state.
(21) "Physician assistant" means a person who holds a
license issued under Chapter 204, Occupations Code.
(22) "Podiatrist" means a person licensed to practice
podiatry under Chapter 202, Occupations Code.
(23) "Veterinarian" has the meaning assigned by
Section 801.002, Occupations Code.
SECTION 16. Section 17.49, Business & Commerce Code, is
amended by adding Subsection (d-1) to read as follows:
(d-1) In an action under this subchapter, including a class
action, for damages arising out of personal injury, death, or
property damage allegedly caused by using a drug or device,
including a blood product, that has been approved by the United
States Food and Drug Administration:
(1) a person may not name as a defendant a health care
practitioner or veterinarian who prescribed the drug or device in
accordance with the standard of what a reasonable and prudent
health care practitioner or veterinarian holding the same license
would have done under the same or similar circumstances; and
(2) the health care practitioner or veterinarian who
prescribed the drug or device in accordance with the standard of
what a reasonable and prudent health care practitioner or
veterinarian holding the same license would have done under the
same or similar circumstances is not liable to a claimant.
SECTION 17. The following provisions of the Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes) are repealed:
(1) Section 11.03; and
(2) Subsections (f), (g), (h), (m), and (o), Section
13.01.
(b) Section 74.002, Civil Practice and Remedies Code, is
repealed.
SECTION 18. (a) Except as provided by this section, 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.
(b) Section 17.06, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes), as added by this Act, applies only to a contract entered
into on or after the effective date of this Act.
(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 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.
(d) The changes in law made by Article 4590m, Revised
Statutes, as added by this Act, relating to a review panel in cases
alleging medical care liability against a physician, apply only to
a cause of action that accrues on or after January 1, 2004. A cause
of action that accrues before January 1, 2004, is governed by the
law as it existed immediately before the effective date of this Act,
and that law is continued in effect for that purpose.
(e) The Texas Department of Insurance shall develop rules
for the implementation of Article 4590m, Revised Statutes, as added
by this Act, not later than January 1, 2004.
(f) The Texas State Board of Medical Examiners shall prepare
lists of physicians for the Texas Department of Insurance as
required by Section 2.02, Article 4590m, Revised Statutes, as added
by this Act, not later than June 1, 2004.
(g) The Office of Court Administration of the Texas Judicial
System shall prepare lists of judges as required by Section 2.02,
Article 4590m, Revised Statutes, as added by this Act, not later
than June 1, 2004.
SECTION 19. (a) Except as provided by Subsections (b) and
(c) of this section, this Act takes effect September 1, 2003.
(b) Subsection (a), Section 11.02, Medical Liability and
Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
Civil Statutes), as amended by this Act, and Subsections (e) and
(f), Section 11.02, Medical Liability and Insurance Improvement Act
of Texas (Article 4590i, Vernon's Texas Civil Statutes), as added
by this Act, take effect on the date on which the constitutional
amendment proposed by __J.R. No. ___, 78th Legislature, Regular
Session, 2003, takes effect. If that amendment is not approved by
the voters, this Act has no effect.
(c) Article 4590m, Revised Statutes, as added by this Act,
takes effect January 1, 2004.