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79R5587 MFC-D
By: Staples S.B. No. 1648
A BILL TO BE ENTITLED
AN ACT
relating to civil actions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 26.01(b), Business & Commerce Code, is
amended to read as follows:
(b) Subsection (a) [of this section] applies to:
(1) a promise by an executor or administrator to
answer out of his own estate for any debt or damage due from his
testator or intestate;
(2) a promise by one person to answer for the debt,
default, or miscarriage of another person;
(3) an agreement made on consideration of marriage or
on consideration of nonmarital conjugal cohabitation;
(4) a contract for the sale of real estate;
(5) a lease of real estate for a term longer than one
year;
(6) an agreement which is not to be performed within
one year from the date of making the agreement;
(7) a promise or agreement to pay a commission for the
sale or purchase of:
(A) an oil or gas mining lease;
(B) an oil or gas royalty;
(C) minerals; or
(D) a mineral interest; and
(8) an agreement, promise, contract, or warranty of
cure relating to medical care or results thereof made by a physician
or health care provider as defined in Section 74.001, Civil
Practice and Remedies Code [1.03, Medical Liability and Insurance
Improvement Act of Texas]. This section shall not apply to
pharmacists.
SECTION 2. Section 22.003(a)(2), Civil Practice and
Remedies Code, is amended to read as follows:
(2) "Commercial transportation company" means a
person [an entity] that offers transportation of people or goods to
the public in exchange for compensation.
SECTION 3. Section 22.003(d), Civil Practice and Remedies
Code, is amended to read as follows:
(d) A state agency may not:
(1) pay a commercial transportation company or a
commercial lodging establishment or reimburse a witness for
transportation, meal, or lodging expenses under this section at a
rate that exceeds the maximum rates provided by law for state
employees; or
(2) pay a commercial transportation company or
reimburse a witness for transportation under this section if the
company or transportation is a private aircraft owned or leased by
the witness, unless the travel and the air service is approved in
advance by the state agency.
SECTION 4. Sections 23.002(a) and (b), Civil Practice and
Remedies Code, are amended to read as follows:
(a) If a juror in a civil action is required to appear at a
court proceeding on a religious holy day or days observed by the
juror, the court or the court's designee shall recess the civil
action until the next day the court is in session after the
conclusion of the holy day or days.
(b) A juror seeking a recess must file with the court before
the final selection of the jury an affidavit stating:
(1) the grounds for the recess; and
(2) that the juror holds religious beliefs that
prohibit him from taking part in a court proceeding on the day or
days for which the recess is sought.
SECTION 5. Section 26.001(a), Civil Practice and Remedies
Code, is amended to read as follows:
(a) The supreme court shall adopt rules to provide for the
fair, speedy, and efficient resolution of class actions.
SECTION 6. (a) Section 74.352, Civil Practice and Remedies
Code, is amended by amending Subsections (a), (b), (c), (d), and
(f) to read as follows:
(a) In every health care liability claim the plaintiff shall
within 45 days after the date of filing of the original petition
serve on the defendant's attorney or, if no attorney has appeared
for the defendant, on the defendant full and complete answers to the
appropriate standard set of interrogatories and full and complete
responses to the appropriate standard set of requests for
production of documents and things promulgated by the Health Care
Liability Discovery Panel, if the panel promulgates a standard set
of those forms.
(b) Every physician or health care provider who is a
defendant in a health care liability claim shall within 45 days
after the date on which an answer to the petition was due serve on
the plaintiff's attorney or, if the plaintiff is not represented by
an attorney, on the plaintiff full and complete answers to the
appropriate standard set of interrogatories and complete responses
to the standard set of requests for production of documents and
things promulgated by the Health Care Liability Discovery Panel, if
the panel promulgates a standard set of those forms.
(c) Except on motion and for good cause shown, no objection
may be asserted regarding any standard interrogatory or request for
production of documents and things, but no response shall be
required where a particular interrogatory or request is clearly
inapplicable under the circumstances of the case. An objection may
not be asserted under this section if the Health Care Liability
Discovery Panel does not exist or does not promulgate a standard set
of forms, and a court shall consider an objection raised on this
ground groundless.
(d) Failure to file full and complete answers and responses
to standard interrogatories and requests for production of
documents and things in accordance with Subsections (a) and (b), if
a standard set of those forms exists, or the making of a groundless
objection under Subsection (c) shall be grounds for sanctions by
the court in accordance with the Texas Rules of Civil Procedure on
motion of any party.
(f) If a party is added by an amended pleading,
intervention, or otherwise, the new party shall file full and
complete answers to the appropriate standard set of interrogatories
and full and complete responses to the standard set of requests for
production of documents and things, if a standard set of those forms
exists, no later than 45 days after the date of filing of the
pleading by which the party first appeared in the action.
(b) The legislature finds that:
(1) on or before September 1, 2005, the Health Care
Discovery Liability Panel described by Section 74.352, Civil
Practice and Remedies Code, does not exist and the standard forms
described by that section as being promulgated by that panel do not
exist; and
(2) until the panel exists and the forms are
promulgated, an objection or claim under Section 74.352 is
groundless.
SECTION 7. Section 76.001, Civil Practice and Remedies
Code, is amended by adding Subdivision (2-a) to read as follows:
(2-a) "Needy" includes a person who qualifies for a
federal, state, or local assistance program or who is or will be
assisted by a church, a not-for-profit organization, or a nonprofit
organization.
SECTION 8. Section 84.007(e), Civil Practice and Remedies
Code, is amended to read as follows:
(e) Sections 84.005 and 84.006 of this chapter do not apply
to a health care provider as defined in Section 74.001 [the Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes)], unless the provider is a federally
funded migrant or community health center under the Public Health
Service Act (42 U.S.C.A. Sections 254b [254(b)] and 254c [(c)]) or
is a nonprofit health maintenance organization created and operated
by a community center under Section 534.101, Health and Safety
Code, or unless the provider usually provides discounted services
at or below costs based on the ability of the beneficiary to pay.
Acceptance of Medicare or Medicaid payments will not disqualify a
health care provider under this section. In no event shall Sections
84.005 and 84.006 of this chapter apply to a general hospital or
special hospital as defined in Chapter 241, Health and Safety Code,
or a facility or institution licensed under Subtitle C, Title 7,
Health and Safety Code, or Chapter 242, Health and Safety Code, or
to any health maintenance organization created and operating under
Chapter 843, Insurance Code, except for a nonprofit health
maintenance organization created under Section 534.101, Health and
Safety Code.
SECTION 9. Section 85.003(a), Civil Practice and Remedies
Code, is amended to read as follows:
(a) A claimant proves stalking against a defendant by
showing:
(1) on more than one occasion the defendant engaged in
harassing behavior;
(2) as a result of the harassing behavior, the
claimant reasonably feared for the claimant's safety or the safety
of a member of the claimant's family; and
(3) the defendant violated a restraining order
prohibiting harassing behavior or:
(A) the defendant, while engaged in harassing
behavior, by acts or words threatened to inflict bodily injury on
the claimant or to commit an offense against the claimant, a member
of the claimant's family, or the claimant's property;
(B) the defendant had the apparent ability to
carry out the threat;
(C) the defendant's apparent ability to carry out
the threat caused the claimant to reasonably fear for the
claimant's safety, [or] the safety of a family member, or the safety
of the claimant's property;
(D) the claimant at least once clearly demanded
that the defendant stop the defendant's harassing behavior;
(E) after the demand to stop by the claimant, the
defendant continued the harassing behavior; and
(F) the harassing behavior has been reported to
the police as a stalking offense.
SECTION 10. Section 88.001(4), Civil Practice and Remedies
Code, is amended to read as follows:
(4) "Health care provider" means a person or entity as
defined in Section 74.001 [1.03(a)(3), Medical Liability and
Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
Civil Statutes)].
SECTION 11. Section 88.002(k), Civil Practice and Remedies
Code, is amended to read as follows:
(k) An enrollee who files an action under this chapter shall
comply with the requirements of Section 74.351 [13.01, Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes)], as it relates to [cost bonds,
deposits, and] expert reports.
SECTION 12. Chapter 124, Civil Practice and Remedies Code,
is amended by adding Section 124.002 to read as follows:
Sec. 124.002. LIABILITY. A person who is privileged to
detain another under Section 124.001 is not liable for damages
arising from the detention of that person.
SECTION 13. Section 81.048(b), Health and Safety Code, is
amended to read as follows:
(b) Notice of a positive test result for a reportable
disease designated under Subsection (a) shall be given to an
emergency medical service personnel, peace officer, or fire fighter
as provided by this section if:
(1) the emergency medical service personnel, peace
officer, or fire fighter delivered a person to a hospital as defined
by Section 74.001, Civil Practice and Remedies Code [1.03, Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes)];
(2) the hospital has knowledge that the person has a
reportable disease and has medical reason to believe that the
person had the disease when the person was admitted to the hospital;
and
(3) the emergency medical service personnel, peace
officer, or fire fighter was exposed to the reportable disease
during the course of duty.
SECTION 14. Section 241.153, Health and Safety Code, is
amended to read as follows:
Sec. 241.153. DISCLOSURE WITHOUT WRITTEN AUTHORIZATION. A
patient's health care information may be disclosed without the
patient's authorization if the disclosure is:
(1) directory information, unless the patient has
instructed the hospital not to make the disclosure or the directory
information is otherwise protected by state or federal law;
(2) to a health care provider who is rendering health
care to the patient when the request for the disclosure is made;
(3) to a transporting emergency medical services
provider for the sole purpose of determining the patient's
diagnosis and the outcome of the patient's hospital admission;
(4) to a member of the clergy specifically designated
by the patient;
(5) to a qualified organ or tissue procurement
organization as defined in Section 692.002 for the purpose of
making inquiries relating to donations according to the protocol
referred to in Section 692.013(d);
(6) to a prospective health care provider for the
purpose of securing the services of that health care provider as
part of the patient's continuum of care, as determined by the
patient's attending physician;
(7) to a person authorized to consent to medical
treatment under Chapter 313 or to a person in a circumstance
exempted from Chapter 313 to facilitate the adequate provision of
treatment;
(8) to an employee or agent of the hospital who
requires health care information for health care education, quality
assurance, or peer review or for assisting the hospital in the
delivery of health care or in complying with statutory, licensing,
accreditation, or certification requirements and if the hospital
takes appropriate action to ensure that the employee or agent:
(A) will not use or disclose the health care
information for any other purpose; and
(B) will take appropriate steps to protect the
health care information;
(9) to a federal, state, or local government agency or
authority to the extent authorized or required by law;
(10) to a hospital that is the successor in interest to
the hospital maintaining the health care information;
(11) to the American Red Cross for the specific
purpose of fulfilling the duties specified under its charter
granted as an instrumentality of the United States government;
(12) to a regional poison control center, as the term
is used in Chapter 777, to the extent necessary to enable the center
to provide information and education to health professionals
involved in the management of poison and overdose victims,
including information regarding appropriate therapeutic use of
medications, their compatibility and stability, and adverse drug
reactions and interactions;
(13) to a health care utilization review agent who
requires the health care information for utilization review of
health care under Article 21.58A, Insurance Code;
(14) for use in a research project authorized by an
institutional review board under federal law;
(15) to health care personnel of a penal or other
custodial institution in which the patient is detained if the
disclosure is for the sole purpose of providing health care to the
patient;
(16) to facilitate reimbursement to a hospital, other
health care provider, or the patient for medical services or
supplies;
(17) to a health maintenance organization for purposes
of maintaining a statistical reporting system as required by a rule
adopted by a state agency or regulations adopted under the federal
Health Maintenance Organization Act of 1973[, as amended] (42
U.S.C. Section 300e [300] et seq.);
(18) to satisfy a request for medical records of a
deceased or incompetent person pursuant to Section 74.051(e), Civil
Practice and Remedies Code [4.01(e), Medical Liability and
Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
Civil Statutes)];
(19) to comply with a court order except as provided by
Subdivision (20); or
(20) related to a judicial proceeding in which the
patient is a party and the disclosure is requested under a subpoena
issued under:
(A) the Texas Rules of Civil Procedure or Code of
Criminal Procedure; or
(B) Chapter 121, Civil Practice and Remedies
Code.
SECTION 15. Section 578.003(a), Health and Safety Code, is
amended to read as follows:
(a) The board by rule shall adopt a standard written consent
form to be used when electroconvulsive therapy is considered. The
board by rule shall also prescribe the information that must be
contained in the written supplement required under Subsection (c).
In addition to the information required under this section, the
form must include the information required by the Texas Medical
Disclosure Panel for electroconvulsive therapy. In developing the
form, the board shall consider recommendations of the panel. Use of
the consent form prescribed by the board in the manner prescribed by
this section creates a rebuttable presumption that the disclosure
requirements of Sections 74.104 and 74.105, Civil Practice and
Remedies Code [6.05 and 6.06, Medical Liability and Insurance
Improvement Act of Texas (Article 4590i, Vernon's Texas Civil
Statutes)], have been met.
SECTION 16. Section 611.004(a), Health and Safety Code, is
amended to read as follows:
(a) A professional may disclose confidential information
only:
(1) to a governmental agency if the disclosure is
required or authorized by law;
(2) to medical or law enforcement personnel if the
professional determines that there is a probability of imminent
physical injury by the patient to the patient or others or there is
a probability of immediate mental or emotional injury to the
patient;
(3) to qualified personnel for management audits,
financial audits, program evaluations, or research, in accordance
with Subsection (b);
(4) to a person who has the written consent of the
patient, or a parent if the patient is a minor, or a guardian if the
patient has been adjudicated as incompetent to manage the patient's
personal affairs;
(5) to the patient's personal representative if the
patient is deceased;
(6) to individuals, corporations, or governmental
agencies involved in paying or collecting fees for mental or
emotional health services provided by a professional;
(7) to other professionals and personnel under the
professionals' direction who participate in the diagnosis,
evaluation, or treatment of the patient;
(8) in an official legislative inquiry relating to a
state hospital or state school as provided by Subsection (c);
(9) to designated persons or personnel of a
correctional facility in which a person is detained if the
disclosure is for the sole purpose of providing treatment and
health care to the person in custody;
(10) to an employee or agent of the professional who
requires mental health care information to provide mental health
care services or in complying with statutory, licensing, or
accreditation requirements, if the professional has taken
appropriate action to ensure that the employee or agent:
(A) will not use or disclose the information for
any other purposes; and
(B) will take appropriate steps to protect the
information; or
(11) to satisfy a request for medical records of a
deceased or incompetent person pursuant to Section 74.051(e), Civil
Practice and Remedies Code [4.01(e), Medical Liability and
Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas
Civil Statutes)].
SECTION 17. Section 159.003(a), Occupations Code, is
amended to read as follows:
(a) An exception to the privilege of confidentiality in a
court or administrative proceeding exists:
(1) in a proceeding brought by a patient against a
physician, including:
(A) a malpractice proceeding; or
(B) a criminal proceeding or license revocation
proceeding in which the patient is a complaining witness and
disclosure is relevant to a claim or defense of the physician;
(2) if the patient or a person authorized to act on the
patient's behalf submits a written consent to the release of
confidential information as provided by Section 159.005;
(3) in a proceeding to substantiate and collect on a
claim for medical services provided to the patient;
(4) in a civil action or administrative proceeding, if
relevant, brought by the patient or a person on the patient's
behalf, if the patient or person is attempting to recover monetary
damages for a physical or mental condition including the patient's
death;
(5) in a disciplinary investigation or proceeding
conducted under this subtitle, if the board protects the identity
of any patient whose billing or medical records are examined other
than a patient:
(A) for whom an exception exists under
Subdivision (1); or
(B) who has submitted written consent to the
release of the billing or medical records as provided by Section
159.005;
(6) in a criminal investigation of a physician in
which the board is participating, or assisting in the investigation
or proceeding by providing certain billing or medical records
obtained from the physician, if the board protects the identity of a
patient whose billing or medical records are provided in the
investigation or proceeding other than a patient:
(A) for whom an exception exists under
Subdivision (1); or
(B) who has submitted written consent to the
release of the billing or medical records as provided by Section
159.005;
(7) in an involuntary civil commitment proceeding,
proceeding for court-ordered treatment, or probable cause hearing
under Chapter 462, 574, or 593, Health and Safety Code;
(8) if the patient's physical or mental condition is
relevant to the execution of a will;
(9) if the information is relevant to a proceeding
brought under Section 159.009;
(10) in a criminal prosecution in which the patient is
a victim, witness, or defendant;
(11) to satisfy a request for billing or medical
records of a deceased or incompetent person under Section
74.051(e), Civil Practice and Remedies Code [4.01(e), Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes)]; or
(12) to a court or a party to an action under a court
order or court subpoena.
SECTION 18. Section 160.053(a), Occupations Code, is
amended to read as follows:
(a) Not later than the 30th day after the date an insurer
receives from an insured a complaint filed in a lawsuit, a
settlement of a claim without the filing of a lawsuit, or a
settlement of a lawsuit against the insured, the insurer shall
furnish to the board:
(1) the name of the insured and the insured's Texas
medical license number;
(2) the policy number;
(3) a copy of the complaint or settlement; and
(4) a copy of any expert report served [filed] under
Section 74.351, Civil Practice and Remedies Code [13.01, Medical
Liability and Insurance Improvement Act of Texas (Article 4590i,
Vernon's Texas Civil Statutes)].
SECTION 19. Section 164.201, Occupations Code, is amended
to read as follows:
Sec. 164.201. REVIEW BY BOARD IF THREE OR MORE MALPRACTICE
CLAIMS. The board shall review the medical competency of a
physician against whom three or more expert reports under Section
74.351, Civil Practice and Remedies Code [13.01, Medical Liability
and Insurance Improvement Act of Texas (Article 4590i, Vernon's
Texas Civil Statutes)], have been served [filed] in three separate
lawsuits within a five-year period in the same manner as if a
complaint against the physician had been made to the board under
Section 154.051.
SECTION 20. (a) The change in law made by Section 26.01,
Business & Commerce Code, as amended by this Act, applies only to an
agreement, promise, contract, or warranty made on or after the
effective date of this Act. An agreement, promise, contract, or
warranty made 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) The change in law made by Sections 22.003, 23.002,
76.001, 84.007, 85.003, 88.001, and 88.002, Civil Practice and
Remedies Code, as amended by this Act, and Section 124.002, Civil
Practice and Remedies Code, as added by 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 in effect immediately before that
date, and that law is continued in effect for that purpose.
(c) The amendment by this Act of Section 74.352, Civil
Practice and Remedies Code, is intended to clarify rather than
change existing law.
(d) The change in law made by Section 81.048, Health and
Safety Code, as amended by this Act, applies only to conduct of
emergency services personnel or a peace officer or firefighter on
or after the effective date of this Act. Conduct of those persons
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.
(e) The change in law made by Sections 241.153 and 611.004,
Health and Safety Code, and Section 159.003, Occupations Code,
applies only to a disclosure made in response to a request made on
or after the effective date of this Act. A disclosure made to a
request made 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.
(f) The change in law made by Section 578.003, Health and
Safety Code, and Section 160.053, Occupations Code, as amended by
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 is governed by the law in effect before that date, and that law
is continued in effect for that purpose.
SECTION 21. 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.