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.