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79R7537 MFC-F

By:  Nixon                                                        H.B. No. 2306


A BILL TO BE ENTITLED
AN ACT
relating to procedures and remedies in certain civil actions. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. MEDICAL LIABILITY
SECTION 1.01. Section 74.051(c), Civil Practice and Remedies Code, is amended to read as follows: (c) Notice, when accompanied by the authorization form for release of protected health information required by Section 74.052, [given as provided in this chapter] shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice, and this tolling shall apply to all parties and potential parties. SECTION 1.02. Section 74.052, Civil Practice and Remedies Code, is amended by amending Subsection (c) and adding Subsection (d) to read as follows: (c) The medical authorization required by this section shall be in the following form and shall be construed in accordance with the "Standards for Privacy of Individually Identifiable Health Information" (45 C.F.R. Parts 160 and 164).
AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION
A. I, __________ (name of patient or authorized representative), hereby authorize __________ (name of physician or other health care provider to whom the notice of health care claim is directed) to obtain and disclose (within the parameters set out below) the protected health information described below for the following specific purposes: 1. To facilitate the investigation and evaluation of the health care claim described in the accompanying Notice of Health Care Claim; or 2. Defense of any litigation arising out of the claim made the basis of the accompanying Notice of Health Care Claim. B. The health information to be obtained, used, or disclosed extends to and includes the verbal as well as the written and is specifically described as follows: 1. The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated __________ (patient) in connection with the injuries alleged to have been sustained in connection with the claim asserted in the accompanying Notice of Health Care Claim. (Here list the name and current address of all treating physicians or health care providers). This authorization shall extend to any additional physicians or health care providers that may in the future evaluate, examine, or treat __________ (patient) for injuries alleged in connection with the claim made the basis of the attached Notice of Health Care Claim; 2. The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated __________ (patient) during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim. (Here list the name and current address of such physicians or health care providers, if applicable.) 3. The health information covered by this authorization specifically includes all records in the custody of a listed health care provider relating to the treatment, evaluation, or diagnosis of acquired immune deficiency syndrome (AIDS), human immunodeficiency virus (HIV), alcohol or chemical dependency, and behavioral or mental health conditions unless the records pertaining to these conditions are identified by date and health care provider and included in the excluded health information list under Paragraph C. C. Excluded Health Information--the following constitutes a list of physicians or health care providers possessing health care information concerning __________ (patient) to which this authorization does not apply because I contend that such health care information is not relevant to the damages being claimed or to the physical, mental, or emotional condition of __________ (patient) arising out of the claim made the basis of the accompanying Notice of Health Care Claim. (Here state "none" or list the name of each physician or health care provider to whom this authorization does not extend and the inclusive dates of examination, evaluation, or treatment to be withheld from disclosure.) D. The persons or class of persons to whom the health information of __________ (patient) will be disclosed or who will make use of said information are: 1. Any and all physicians or health care providers providing care or treatment to __________ (patient); 2. Any liability insurance entity providing liability insurance coverage or defense to any physician or health care provider to whom Notice of Health Care Claim has been given with regard to the care and treatment of __________ (patient); 3. Any consulting or testifying experts employed by or on behalf of __________ (name of physician or health care provider to whom Notice of Health Care Claim has been given) with regard to the matter set out in the Notice of Health Care Claim accompanying this authorization; 4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on behalf of __________ (name of physician or health care provider to whom Notice of Health Care Claim has been given) with regard to the matter set out in the Notice of Health Care Claim accompanying this authorization; 5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment of __________ (patient). E. This authorization shall expire upon resolution of the claim asserted or at the conclusion of any litigation instituted in connection with the subject matter of the Notice of Health Care Claim accompanying this authorization, whichever occurs sooner. F. I understand that, without exception, I have the right to revoke this authorization in writing. I further understand the consequence of any such revocation as set out in Section 74.052, Civil Practice and Remedies Code. G. I understand that the signing of this authorization is not a condition for continued treatment, payment, enrollment, or eligibility for health plan benefits. H. I understand that information used or disclosed pursuant to this authorization may be subject to redisclosure by the recipient and may no longer be protected by federal HIPAA privacy regulations. Signature of Patient/Representative __________ Date __________ Name of Patient/Representative __________ Description of Representative's Authority __________ (d) The deliberate omission of the physician or health care provider information required to be disclosed under Subsection (c) is a violation of Section 74.051, and notice that deliberately omits this information does not toll the applicable statute of limitations for any period of time. Inadvertent omission of the required physician or health care provider information may, at the option of the physician or health care provider to whom the authorization has been given, result in abatement of all further proceedings until the 60th day after the date the omitted physician or health care provider information is received. SECTION 1.03. Section 74.351, Civil Practice and Remedies Code, is amended by amending Subsections (a), (b), (c), and (l) and adding Subsections (d) and (t-1) to read as follows: (a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived. A report required by this subsection that is served on a party or a party's attorney prior to the deadline for the filing of the served party's initial responsive pleading shall be treated as if it were served 30 days after the deadline for the filing of the served party's initial responsive pleading, and the original petition shall state that the report was served on the party along with the original petition. (b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a) or does not meet the requirements of Subsection (r)(6), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), enter an order that: (1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider; and (2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim. (c) If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency if, after notice and hearing, the court determines there is good cause for the granting of the extension. If the claimant does not receive notice of the court's ruling granting the extension until after the 120-day deadline has passed, then the 30-day extension shall run from the date the plaintiff first received the notice. (d) An expert report served on a physician under this subchapter must be prepared and signed by a physician who is: (1) licensed and in good standing under Subtitle B, Title 3, Occupations Code; and (2) actively engaged in the practice of medicine in the same or similar specialty as the physician against whom the health care liability claim is asserted. (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 meet the requirements of Subsection (d) and does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6). (t-1) Subsection (k) does not apply to a disciplinary, civil, or administrative action or sanction brought or imposed by the Texas State Board of Medical Examiners. SECTION 1.04. Section 74.351(r)(5), Civil Practice and Remedies Code, is amended to read as follows: (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 74.401; (B) with respect to a person giving opinion testimony regarding whether a health care provider departed from accepted standards of health care, an expert qualified to testify under the requirements of Section 74.402; (C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician or physician expert witness who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence; (D) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care for a dentist, a dentist, [or] physician, or physician expert witness who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence; or (E) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care for a podiatrist, a podiatrist, [or] physician, or physician expert witness who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence. SECTION 1.05. Sections 74.401(a) and (g), Civil Practice and Remedies Code, are 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: (1) is licensed and in good standing as a physician or physician expert witness under Subtitle B, Title 3, Occupations Code; (2) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose; (3) [(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 (4) [(3)] is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care. (g) In this subchapter, "physician" means a person who is: (1) licensed as a physician or physician expert witness under Subtitle B, Title 3, Occupations Code [to practice medicine in one or more states in the United States]; or (2) a graduate of a medical school accredited by the Liaison Committee on Medical Education or the American Osteopathic Association only if testifying as a defendant and that testimony relates to that defendant's standard of care, the alleged departure from that standard of care, or the causal relationship between the alleged departure from that standard of care and the injury, harm, or damages claimed. SECTION 1.06. Sections 74.403(a), (b), and (c), Civil Practice and Remedies Code, are amended to read as follows: (a) Except as provided by Subsections (b) and (c), in a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician or physician expert witness and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence. (b) In a suit involving a health care liability claim against a dentist, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed if the person is a dentist, [or] physician, or physician expert witness and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence. (c) In a suit involving a health care liability claim against a podiatrist, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed if the person is a podiatrist, [or] physician, or physician expert witness and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence. SECTION 1.07. Section 74.503, Civil Practice and Remedies Code, is amended by adding Subsection (e) to read as follows: (e) Evidence regarding annuities to cover future medical expenses of a claimant shall be considered, if offered by the defendant: (1) by the jury for the purpose of considering an award of future medical expenses; and (2) by the court when considering how to allocate an award of future medical expenses. SECTION 1.08. Chapter 74, Civil Practice and Remedies Code, is amended by adding Subchapter N to read as follows:
SUBCHAPTER N. BENEVOLENT GESTURES
Sec. 74.801. DEFINITION. In this subchapter, "relative" means a spouse, parent, grandparent, stepfather, child, grandchild, brother, sister, half-brother, half-sister, or spouse's parents and includes any of these relationships that are created as a result of adoption. Sec. 74.802. ADMISSIBILITY OF BENEVOLENT GESTURES. In an action on a health care liability claim, any statement, affirmation, gesture, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that is made by a physician or health care provider to the claimant, a relative of the claimant, or a representative of the claimant and that relates to discomfort, pain, suffering, injury, or death as the result of the health care or medical care provided is not inadmissible as evidence of an admission of liability or an admission against interest. SECTION 1.09. Section 153.051(d), Occupations Code, is amended to read as follows: (d) The board may not set, charge, collect, receive, or deposit any of the following fees in excess of: (1) $900 for a license; (2) $400 for a first registration permit; (3) $200 for a temporary license; (4) $400 for renewal of a registration permit; (5) $200 for a physician-in-training permit; (6) $600 for the processing of an application and the issuance of a registration for anesthesia in an outpatient setting; (7) $200 for an endorsement to other state medical boards; (8) $200 for a duplicate license; [or] (9) $700 for a reinstated license after cancellation for cause; (10) $900 for a license and initial registration permit for a physician expert witness; or (11) $400 for renewal of a registration permit for a physician expert witness. SECTION 1.10. Subchapter A, Chapter 155, Occupations Code, is amended by adding Sections 155.011-155.014 to read as follows: Sec. 155.011. PHYSICIAN EXPERT WITNESS LICENSE REQUIRED. A person may not provide physician expert medical testimony or opinion in any action in this state unless the person holds a license as a physician issued under this subtitle or a license as a physician expert witness issued under this subchapter. Sec. 155.012. ISSUANCE OF PHYSICIAN EXPERT WITNESS LICENSE. (a) Any physician holding a valid, unrestricted, active license to practice medicine in any other state who pays a license and initial registration permit fee in an amount set by the board and has not had a previous physician expert witness license refused, revoked, or restricted by the board may apply for a license to provide medical expert testimony or opinion in connection with any litigation pending in this state. (b) In addition to the other requirements prescribed by this section, the board may require an applicant to comply with other requirements that the board considers appropriate. Sec. 155.013. LICENSE DENIAL AND DISCIPLINARY ACTION. The board may refuse to issue a physician expert witness license and may take disciplinary action against a physician or a physician expert witness for: (1) committing an act prohibited by Section 164.051, 164.052, or 164.053; (2) providing expert witness testimony or opinion that is false, misleading, or deceptive or that intentionally or negligently misstates the relevant applicable standard of care; or (3) otherwise violating this subtitle or a rule of the board. Sec. 155.014. PROHIBITED ACTS. (a) Unless licensed by the board as a physician under other provisions of this subtitle, a physician expert witness may not engage in the practice of medicine in this state. (b) A physician licensed as a physician expert witness under this subchapter may not use or permit the use of the license to prove or enhance the physician's qualifications as a medical expert before a jury in this state. SECTION 1.11. Section 156.001(a), Occupations Code, is amended to read as follows: (a) Each person licensed to practice medicine or licensed as a physician expert witness in this state must register with the board every two years. The initial registration permit shall be issued with the license and expires on the last day of the birth month of the license holder. SECTION 1.12. (a) Not later than January 1, 2006, the Texas State Board of Medical Examiners shall adopt rules required to implement Sections 155.011-155.014, Occupations Code, as added by this Act. Sections 1.04, 1.05, 1.06, and 1.10 of this Act apply only to an action filed on or after the effective date of those rules. An action filed before that date is governed by the law in effect immediately before the effective date of those rules, and that law is continued in effect for that purpose. (b) Sections 1.07 and 1.08 of this Act apply to any action in which the trial, or any new trial or retrial following motion, appeal, or otherwise, begins on or after September 1, 2005.
ARTICLE 2. PROPORTIONATE RESPONSIBILITY
SECTION 2.01. Section 33.012, Civil Practice and Remedies Code, is amended by adding Subsection (f) to read as follows: (f) If a claimant is awarded noneconomic damages by the trier of fact, the court shall apply all limitations on damages before applying the defendant's percentage of responsibility to the jury verdict.
ARTICLE 3. PRODUCTS LIABILITY
SECTION 3.01. Section 82.007, Civil Practice and Remedies Code, is amended by adding Subsection (c) to read as follows: (c) This section may not be construed to create a theory of liability that did not exist before September 1, 2003. SECTION 3.02. Section 82.008, Civil Practice and Remedies Code, is amended by adding Subsection (f) to read as follows: (f) This section may not be construed to create a theory of liability that did not exist before September 1, 2003.
ARTICLE 4. LIABILITY OF PUBLIC SERVANTS
SECTION 4.01. Section 108.001(3), Civil Practice and Remedies Code, is amended to read as follows: (3) "Public servant" includes a licensed physician who provides emergency or postemergency stabilization services to patients in a hospital owned or operated by a unit of local government or who provides medical care services to indigent patients in a clinic owned or operated by a unit of local government.
ARTICLE 5. JURY SELECTION
SECTION 5.01. Section 62.105, Government Code, is amended to read as follows: Sec. 62.105. DISQUALIFICATION FOR PARTICULAR JURY. (a) A person is disqualified to serve as a petit juror in a particular case if he: (1) is a witness in the case; (2) is interested, directly or indirectly, in the subject matter of the case; (3) is related by consanguinity or affinity within the third degree, as determined under Chapter 573, to a party in the case; (4) has a bias or prejudice in favor of or against a party in the case; or (5) has served as a petit juror in a former trial of the same case or in another case involving the same questions of fact. (b) A potential petit juror's answers during voir dire regarding money damages may not be used to establish bias or prejudice. SECTION 5.02. This article applies to any action in which the trial, or any new trial or retrial following motion, appeal, or otherwise, begins on or after September 1, 2005.
ARTICLE 6. TRANSITION; EFFECTIVE DATE
SECTION 6.01. Except as provided by a specific provision in an article of this Act, this Act applies only to an action filed on or after the effective date of this Act. An action filed before the effective date of this Act, including an action filed before that date in which a party is joined or designated after that date, is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose. SECTION 6.02. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2005.