78R5453 DLF-D

By:  Janek                                                        S.B. No. 1671


A BILL TO BE ENTITLED
AN ACT
relating to health care liability claims against nursing homes. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 11.02, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by amending Subsection (b) and adding Subsection (e) to read as follows: (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) This subsection applies only to an action on a health care liability claim in which final judgment is rendered against a health care provider that is a nursing home licensed under Chapter 242, Health and Safety Code, or a physician or health care provider who is providing health care as an employee or contractor of the nursing home. In an action subject to this subsection, the limit of civil liability of the health care provider or physician for all past and future noneconomic losses recoverable by or on behalf of any injured person or the injured person's estate, including past, present, and future physical pain and suffering, mental anguish and suffering, loss of consortium, loss of companionship and society, disfigurement, and any other nonpecuniary damage, is limited to an amount not to exceed $250,000. With respect to the liability of a nursing home under this subsection, this subsection applies only to a nursing home that, at the time the health care liability claim accrues, maintains the professional liability insurance coverage described by Section 242.0372, Health and Safety Code. Subsection (a) of this section does not apply to a health care liability claim subject to this subsection. SECTION 2. Subchapter O, Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes), is amended by adding Section 15.02 to read as follows: Sec. 15.02. NURSING HOMES. (a) This section applies only to a contract for services to be provided by a health care provider that is a nursing home licensed under Chapter 242, Health and Safety Code, or that is a physician or health care provider who is providing health care as an employee or contractor of the nursing home. Section 15.01 of this Act does not apply to a contract subject to this section. (b) If a contract subject to this section contains an agreement to arbitrate a dispute relating to a health care liability claim, the agreement to arbitrate must be the first article of the contract. The agreement must state: "A dispute between the parties to this contract relating to a health care liability claim, including any claim for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety, will be determined by arbitration. A party to this contract may not bring a suit against another party to this contract relating to a health care liability claim, except as Texas law provides for requiring arbitration or judicial review of arbitration proceedings. A party to this contract, by entering into this contract, is giving up the constitutional right to have the dispute decided in a court of law before a jury, and instead is accepting the use of arbitration." (c) The arbitration agreement may include a provision specifying the method of appointment of one or more arbitrators. (d) Immediately before the signature line provided for the person contracting for the nursing home services must appear the following in at least 10-point bold red type: "NOTICE: BY SIGNING THIS CONTRACT YOU AGREE TO SUBMIT ANY ISSUE OF MALPRACTICE IN MEDICAL CARE OR HEALTH CARE TO NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE 1 OF THIS CONTRACT." (e) The contract may be signed by the resident, except that: (1) if the resident is incapacitated, the contract may be signed by a court-appointed guardian of the resident or by an agent to whom authority to make health care decisions is delegated under a medical power of attorney under Chapter 166, Health and Safety Code; and (2) if the resident is a minor, the contract may be signed by a parent, managing conservator, or court-appointed guardian. (f) The arbitration agreement is applicable to a health care liability claim relating to nursing home services for which the contract was signed that are provided after the contract is signed and before the contract is rescinded. The person who signed the contract as authorized under Subsection (e) of this section may rescind the contract by written notice provided not later than the 30th day after the date the contract was signed. (g) Notwithstanding Section 171.002, Civil Practice and Remedies Code, or any other law, Chapter 171, Civil Practice and Remedies Code, applies to an arbitration conducted in accordance with the arbitration agreement. (h) An arbitration agreement that complies with this section is not unconscionable for purposes of Section 171.022, Civil Practice and Remedies Code. SECTION 3. The Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes) is amended by adding Subchapter S to read as follows:
SUBCHAPTER S. ATTORNEY'S FEES IN CLAIMS AGAINST NURSING HOMES
Sec. 19.01. LIMITATIONS ON ATTORNEY CONTINGENCY FEE AGREEMENTS. (a) In this section, "recovered" means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim. Costs of medical or health care services incurred by the claimant and the attorney's office overhead costs or charges are not deductible disbursements or costs. (b) An attorney may not contract for or collect a contingency fee for representing a person seeking damages in connection with a health care liability claim against a health care provider that is a nursing home licensed under Chapter 242, Health and Safety Code, or that is a physician or health care provider who is providing health care as an employee or contractor of the nursing home, in excess of the following limits: (1) 40 percent of the first $50,000 recovered; (2) 33.3 percent of the next $50,000 recovered; (3) 25 percent of the next $500,000 recovered; and (4) 15 percent of any additional amount recovered. Sec. 19.02. APPLICABILITY. The limitations in Section 19.01 of this subchapter apply without regard to whether: (1) the recovery is by settlement, arbitration, or judgment; or (2) the person for whom the recovery is sought is an adult, a minor, or an incapacitated person. SECTION 4. This Act applies 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 as it existed immediately before the effective date of this Act, and that law is continued in effect for this purpose. SECTION 5. Section 15.02, 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. A contract entered into before the effective date of this Act is governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for this purpose. SECTION 6. This Act takes effect September 1, 2003.