This website will be unavailable from Friday, April 26, 2024 at 6:00 p.m. through Monday, April 29, 2024 at 7:00 a.m. due to data center maintenance.
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.