CHAPTER 74. MEDICAL LIABILITY
CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 74. MEDICAL LIABILITY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 74.001. DEFINITIONS. (a) In this chapter:
(1) "Affiliate" means a person who, directly or indirectly,
through one or more intermediaries, controls, is controlled by,
or is under common control with a specified person, including any
direct or indirect parent or subsidiary.
(2) "Claimant" means a person, including a decedent's estate,
seeking or who has sought recovery of damages in a health care
liability claim. All persons claiming to have sustained damages
as the result of the bodily injury or death of a single person
are considered a single claimant.
(3) "Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of the person, whether through ownership of equity or
securities, by contract, or otherwise.
(4) "Court" means any federal or state court.
(5) "Disclosure panel" means the Texas Medical Disclosure Panel.
(6) "Economic damages" has the meaning assigned by Section
41.001.
(7) "Emergency medical care" means bona fide emergency services
provided after the sudden onset of a medical or traumatic
condition manifesting itself by acute symptoms of sufficient
severity, including severe pain, such that the absence of
immediate medical attention could reasonably be expected to
result in placing the patient's health in serious jeopardy,
serious impairment to bodily functions, or serious dysfunction of
any bodily organ or part. The term does not include medical care
or treatment that occurs after the patient is stabilized and is
capable of receiving medical treatment as a nonemergency patient
or that is unrelated to the original medical emergency.
(8) "Emergency medical services provider" means a licensed
public or private provider to which Chapter 773, Health and
Safety Code, applies.
(9) "Gross negligence" has the meaning assigned by Section
41.001.
(10) "Health care" means any act or treatment performed or
furnished, or that should have been performed or furnished, by
any health care provider for, to, or on behalf of a patient
during the patient's medical care, treatment, or confinement.
(11) "Health care institution" includes:
(A) an ambulatory surgical center;
(B) an assisted living facility licensed under Chapter 247,
Health and Safety Code;
(C) an emergency medical services provider;
(D) a health services district created under Chapter 287, Health
and Safety Code;
(E) a home and community support services agency;
(F) a hospice;
(G) a hospital;
(H) a hospital system;
(I) an intermediate care facility for the mentally retarded or a
home and community-based services waiver program for persons with
mental retardation adopted in accordance with Section 1915(c) of
the federal Social Security Act (42 U.S.C. Section 1396n), as
amended;
(J) a nursing home; or
(K) an end stage renal disease facility licensed under Section
251.011, Health and Safety Code.
(12)(A) "Health care provider" means any person, partnership,
professional association, corporation, facility, or institution
duly licensed, certified, registered, or chartered by the State
of Texas to provide health care, including:
(i) a registered nurse;
(ii) a dentist;
(iii) a podiatrist;
(iv) a pharmacist;
(v) a chiropractor;
(vi) an optometrist; or
(vii) a health care institution.
(B) The term includes:
(i) an officer, director, shareholder, member, partner, manager,
owner, or affiliate of a health care provider or physician; and
(ii) an employee, independent contractor, or agent of a health
care provider or physician acting in the course and scope of the
employment or contractual relationship.
(13) "Health care liability claim" means a cause of action
against a health care provider or physician for treatment, lack
of treatment, or other claimed departure from accepted standards
of medical care, or health care, or safety or professional or
administrative services directly related to health care, which
proximately results in injury to or death of a claimant, whether
the claimant's claim or cause of action sounds in tort or
contract.
(14) "Home and community support services agency" means a
licensed public or provider agency to which Chapter 142, Health
and Safety Code, applies.
(15) "Hospice" means a hospice facility or activity to which
Chapter 142, Health and Safety Code, applies.
(16) "Hospital" means a licensed public or private institution
as defined in Chapter 241, Health and Safety Code, or licensed
under Chapter 577, Health and Safety Code.
(17) "Hospital system" means a system of hospitals located in
this state that are under the common governance or control of a
corporate parent.
(18) "Intermediate care facility for the mentally retarded"
means a licensed public or private institution to which Chapter
252, Health and Safety Code, applies.
(19) "Medical care" means any act defined as practicing medicine
under Section 151.002, Occupations Code, performed or furnished,
or which should have been performed, by one licensed to practice
medicine in this state for, to, or on behalf of a patient during
the patient's care, treatment, or confinement.
(20) "Noneconomic damages" has the meaning assigned by Section
41.001.
(21) "Nursing home" means a licensed public or private
institution to which Chapter 242, Health and Safety Code,
applies.
(22) "Pharmacist" means one licensed under Chapter 551,
Occupations Code, who, for the purposes of this chapter, performs
those activities limited to the dispensing of prescription
medicines which result in health care liability claims and does
not include any other cause of action that may exist at common
law against them, including but not limited to causes of action
for the sale of mishandled or defective products.
(23) "Physician" means:
(A) an individual licensed to practice medicine in this state;
(B) a professional association organized under the Texas
Professional Association Act (Article 1528f, Vernon's Texas Civil
Statutes) by an individual physician or group of physicians;
(C) a partnership or limited liability partnership formed by a
group of physicians;
(D) a nonprofit health corporation certified under Section
162.001, Occupations Code; or
(E) a company formed by a group of physicians under the Texas
Limited Liability Company Act (Article 1528n, Vernon's Texas
Civil Statutes).
(24) "Professional or administrative services" means those
duties or services that a physician or health care provider is
required to provide as a condition of maintaining the physician's
or health care provider's license, accreditation status, or
certification to participate in state or federal health care
programs.
(25) "Representative" means the spouse, parent, guardian,
trustee, authorized attorney, or other authorized legal agent of
the patient or claimant.
(b) Any legal term or word of art used in this chapter, not
otherwise defined in this chapter, shall have such meaning as is
consistent with the common law.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Sec. 74.002. CONFLICT WITH OTHER LAW AND RULES OF CIVIL
PROCEDURE. (a) In the event of a conflict between this chapter
and another law, including a rule of procedure or evidence or
court rule, this chapter controls to the extent of the conflict.
(b) Notwithstanding Subsection (a), in the event of a conflict
between this chapter and Section 101.023, 102.003, or 108.002,
those sections of this code control to the extent of the
conflict.
(c) The district courts and statutory county courts in a county
may not adopt local rules in conflict with this chapter.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Sec. 74.003. SOVEREIGN IMMUNITY NOT WAIVED. This chapter does
not waive sovereign immunity from suit or from liability.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Sec. 74.004. EXCEPTION FROM CERTAIN LAWS. (a) Notwithstanding
any other law, Sections 17.41-17.63, Business & Commerce
Code, do not apply to physicians or health care providers with
respect to claims for damages for personal injury or death
resulting, or alleged to have resulted, from negligence on the
part of any physician or health care provider.
(b) This section does not apply to pharmacists.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
SUBCHAPTER B. NOTICE AND PLEADINGS
Sec. 74.051. NOTICE. (a) Any person or his authorized agent
asserting a health care liability claim shall give written notice
of such claim by certified mail, return receipt requested, to
each physician or health care provider against whom such claim is
being made at least 60 days before the filing of a suit in any
court of this state based upon a health care liability claim. The
notice must be accompanied by the authorization form for release
of protected health information as required under Section 74.052.
(b) In such pleadings as are subsequently filed in any court,
each party shall state that it has fully complied with the
provisions of this section and Section 74.052 and shall provide
such evidence thereof as the judge of the court may require to
determine if the provisions of this chapter have been met.
(c) Notice 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.
(d) All parties shall be entitled to obtain complete and
unaltered copies of the patient's medical records from any other
party within 45 days from the date of receipt of a written
request for such records; provided, however, that the receipt of
a medical authorization in the form required by Section 74.052
executed by the claimant herein shall be considered compliance by
the claimant with this subsection.
(e) For the purposes of this section, and notwithstanding
Chapter 159, Occupations Code, or any other law, a request for
the medical records of a deceased person or a person who is
incompetent shall be deemed to be valid if accompanied by an
authorization in the form required by Section 74.052 signed by a
parent, spouse, or adult child of the deceased or incompetent
person.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Sec. 74.052. AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH
INFORMATION. (a) Notice of a health care claim under Section
74.051 must be accompanied by a medical authorization in the form
specified by this section. Failure to provide this authorization
along with the notice of health care claim shall abate all
further proceedings against the physician or health care provider
receiving the notice until 60 days following receipt by the
physician or health care provider of the required authorization.
(b) If the authorization required by this section is modified or
revoked, the physician or health care provider to whom the
authorization has been given shall have the option to abate all
further proceedings until 60 days following receipt of a
replacement authorization that must comply with the form
specified by this section.
(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.)
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
__________
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Sec. 74.053. PLEADINGS NOT TO STATE DAMAGE AMOUNT; SPECIAL
EXCEPTION; EXCLUSION FROM SECTION. Pleadings in a suit based on
a health care liability claim shall not specify an amount of
money claimed as damages. The defendant may file a special
exception to the pleadings on the ground the suit is not within
the court's jurisdiction, in which event the plaintiff shall
inform the court and defendant in writing of the total dollar
amount claimed. This section does not prevent a party from
mentioning the total dollar amount claimed in examining
prospective jurors on voir dire or in argument to the court or
jury.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
SUBCHAPTER C. INFORMED CONSENT
Sec. 74.101. THEORY OF RECOVERY. In a suit against a physician
or health care provider involving a health care liability claim
that is based on the failure of the physician or health care
provider to disclose or adequately disclose the risks and hazards
involved in the medical care or surgical procedure rendered by
the physician or health care provider, the only theory on which
recovery may be obtained is that of negligence in failing to
disclose the risks or hazards that could have influenced a
reasonable person in making a decision to give or withhold
consent.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Sec. 74.102. TEXAS MEDICAL DISCLOSURE PANEL. (a) The Texas
Medical Disclosure Panel is created to determine which risks and
hazards related to medical care and surgical procedures must be
disclosed by health care providers or physicians to their
patients or persons authorized to consent for their patients and
to establish the general form and substance of such disclosure.
(b) The disclosure panel established herein is administratively
attached to the Texas Department of Health. The Texas Department
of Health, at the request of the disclosure panel, shall provide
administrative assistance to the panel; and the Texas Department
of Health and the disclosure panel shall coordinate
administrative responsibilities in order to avoid unnecessary
duplication of facilities and services. The Texas Department of
Health, at the request of the panel, shall submit the panel's
budget request to the legislature. The panel shall be subject,
except where inconsistent, to the rules and procedures of the
Texas Department of Health; however, the duties and
responsibilities of the panel as set forth in this chapter shall
be exercised solely by the disclosure panel, and the board or
Texas Department of Health shall have no authority or
responsibility with respect to same.
(c) The disclosure panel is composed of nine members, with three
members licensed to practice law in this state and six members
licensed to practice medicine in this state. Members of the
disclosure panel shall be selected by the commissioner of health.
(d) At the expiration of the term of each member of the
disclosure panel so appointed, the commissioner shall select a
successor, and such successor shall serve for a term of six
years, or until his successor is selected. Any member who is
absent for three consecutive meetings without the consent of a
majority of the disclosure panel present at each such meeting may
be removed by the commissioner at the request of the disclosure
panel submitted in writing and signed by the chairman. Upon the
death, resignation, or removal of any member, the commissioner
shall fill the vacancy by selection for the unexpired portion of
the term.
(e) Members of the disclosure panel are not entitled to
compensation for their services, but each panelist is entitled to
reimbursement of any necessary expense incurred in the
performance of his duties on the panel, including necessary
travel expenses.
(f) Meetings of the panel shall be held at the call of the
chairman or on petition of at least three members of the panel.
Notwithstanding Chapter 551, Government Code, or any other law,
if any member of the panel is physically present at a meeting,
any number of the other members of the panel may attend the
meeting by use of telephone conference call, videoconferencing,
or other similar telecommunication method for purposes of
establishing a quorum or voting or for any other meeting purpose
allowing a panel member to fully participate in any panel
meeting. This subsection applies without regard to the subject
matter discussed or considered by the panel at the meeting. A
meeting held by telephone conference call, videoconferencing, or
other similar telecommunication method:
(1) is subject to the notice requirements applicable to other
meetings of the panel;
(2) may not be held unless the notice of the meeting specifies
the location of the meeting at which a member of the panel will
be physically present;
(3) must be open to the public and audible to the public at the
location specified in the notice under Subdivision (2); and
(4) must provide two-way audio communication between all panel
members attending the meeting during the entire meeting, and, if
the two-way audio communication link with any member attending
the meeting is disrupted at any time, the meeting may not
continue until the two-way audio communication link is
reestablished.
(g) At the first meeting of the panel each year after its
members assume their positions, the panelists shall select one of
the panel members to serve as chairman and one of the panel
members to serve as vice chairman, and each such officer shall
serve for a term of one year. The chairman shall preside at
meetings of the panel, and in his absence, the vice chairman
shall preside.
(h) Employees of the Texas Department of Health shall serve as
the staff for the panel.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Amended by:
Acts 2005, 79th Leg., Ch.
1287, Sec. 1, eff. June 18, 2005.
Sec. 74.103. DUTIES OF DISCLOSURE PANEL. (a) To the extent
feasible, the panel shall identify and make a thorough
examination of all medical treatments and surgical procedures in
which physicians and health care providers may be involved in
order to determine which of those treatments and procedures do
and do not require disclosure of the risks and hazards to the
patient or person authorized to consent for the patient.
(b) The panel shall prepare separate lists of those medical
treatments and surgical procedures that do and do not require
disclosure and, for those treatments and procedures that do
require disclosure, shall establish the degree of disclosure
required and the form in which the disclosure will be made. Each
provision of a disclosure form prepared under this subsection
must be made available in English and Spanish.
(c) Lists prepared under Subsection (b) together with written
explanations of the degree and form of disclosure shall be
published in the Texas Register.
(d) At least annually, or at such other period the panel may
determine from time to time, the panel will identify and examine
any new medical treatments and surgical procedures that have been
developed since its last determinations, shall assign them to the
proper list, and shall establish the degree of disclosure
required and the form in which the disclosure will be made. The
panel will also examine such treatments and procedures for the
purpose of revising lists previously published. These
determinations shall be published in the Texas Register.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Amended by:
Acts 2005, 79th Leg., Ch.
307, Sec. 1, eff. September 1, 2005.
Sec. 74.104. DUTY OF PHYSICIAN OR HEALTH CARE PROVIDER. Before
a patient or a person authorized to consent for a patient gives
consent to any medical care or surgical procedure that appears on
the disclosure panel's list requiring disclosure, the physician
or health care provider shall disclose to the patient or person
authorized to consent for the patient the risks and hazards
involved in that kind of care or procedure. A physician or health
care provider shall be considered to have complied with the
requirements of this section if disclosure is made as provided in
Section 74.105.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Sec. 74.105. MANNER OF DISCLOSURE. Consent to medical care that
appears on the disclosure panel's list requiring disclosure shall
be considered effective under this chapter if it is given in
writing, signed by the patient or a person authorized to give the
consent and by a competent witness, and if the written consent
specifically states the risks and hazards that are involved in
the medical care or surgical procedure in the form and to the
degree required by the disclosure panel under Section 74.103.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Sec. 74.106. EFFECT OF DISCLOSURE. (a) In a suit against a
physician or health care provider involving a health care
liability claim that is based on the negligent failure of the
physician or health care provider to disclose or adequately
disclose the risks and hazards involved in the medical care or
surgical procedure rendered by the physician or health care
provider:
(1) both disclosure made as provided in Section 74.104 and
failure to disclose based on inclusion of any medical care or
surgical procedure on the panel's list for which disclosure is
not required shall be admissible in evidence and shall create a
rebuttable presumption that the requirements of Sections 74.104
and 74.105 have been complied with and this presumption shall be
included in the charge to the jury; and
(2) failure to disclose the risks and hazards involved in any
medical care or surgical procedure required to be disclosed under
Sections 74.104 and 74.105 shall be admissible in evidence and
shall create a rebuttable presumption of a negligent failure to
conform to the duty of disclosure set forth in Sections 74.104
and 74.105, and this presumption shall be included in the charge
to the jury; but failure to disclose may be found not to be
negligent if there was an emergency or if for some other reason
it was not medically feasible to make a disclosure of the kind
that would otherwise have been negligence.
(b) If medical care or surgical procedure is rendered with
respect to which the disclosure panel has made no determination
either way regarding a duty of disclosure, the physician or
health care provider is under the duty otherwise imposed by law.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Sec. 74.107. INFORMED CONSENT FOR HYSTERECTOMIES. (a) The
disclosure panel shall develop and prepare written materials to
inform a patient or person authorized to consent for a patient of
the risks and hazards of a hysterectomy.
(b) The materials shall be available in English, Spanish, and
any other language the panel considers appropriate. The
information must be presented in a manner understandable to a
layperson.
(c) The materials must include:
(1) a notice that a decision made at any time to refuse to
undergo a hysterectomy will not result in the withdrawal or
withholding of any benefits provided by programs or projects
receiving federal funds or otherwise affect the patient's right
to future care or treatment;
(2) the name of the person providing and explaining the
materials;
(3) a statement that the patient or person authorized to consent
for the patient understands that the hysterectomy is permanent
and nonreversible and that the patient will not be able to become
pregnant or bear children if she undergoes a hysterectomy;
(4) a statement that the patient has the right to seek a
consultation from a second physician;
(5) a statement that the patient or person authorized to consent
for the patient has been informed that a hysterectomy is a
removal of the uterus through an incision in the lower abdomen or
vagina and that additional surgery may be necessary to remove or
repair other organs, including an ovary, tube, appendix, bladder,
rectum, or vagina;
(6) a description of the risks and hazards involved in the
performance of the procedure; and
(7) a written statement to be signed by the patient or person
authorized to consent for the patient indicating that the
materials have been provided and explained to the patient or
person authorized to consent for the patient and that the patient
or person authorized to consent for the patient understands the
nature and consequences of a hysterectomy.
(d) The physician or health care provider shall obtain informed
consent under this section and Section 74.104 from the patient or
person authorized to consent for the patient before performing a
hysterectomy unless the hysterectomy is performed in a
life-threatening situation in which the physician determines
obtaining informed consent is not reasonably possible. If
obtaining informed consent is not reasonably possible, the
physician or health care provider shall include in the patient's
medical records a written statement signed by the physician
certifying the nature of the emergency.
(e) The disclosure panel may not prescribe materials under this
section without first consulting with the Texas State Board of
Medical Examiners.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
SUBCHAPTER D. EMERGENCY CARE
Sec. 74.151. LIABILITY FOR EMERGENCY CARE. (a) A person who in
good faith administers emergency care is not liable in civil
damages for an act performed during the emergency unless the act
is wilfully or wantonly negligent, including a person who:
(1) administers emergency care using an automated external
defibrillator; or
(2) administers emergency care as a volunteer who is a first
responder as the term is defined under Section 421.095,
Government Code.
(b) This section does not apply to care administered:
(1) for or in expectation of remuneration, provided that being
legally entitled to receive remuneration for the emergency care
rendered shall not determine whether or not the care was
administered for or in anticipation of remuneration; or
(2) by a person who was at the scene of the emergency because he
or a person he represents as an agent was soliciting business or
seeking to perform a service for remuneration.
(c), (d) Deleted by Acts 2003, 78th Leg., ch. 204, Sec. 10.01.
(e) This section does not apply to a person whose negligent act
or omission was a producing cause of the emergency for which care
is being administered.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Amended by Acts 1993, 73rd Leg., ch. 960, Sec. 1, eff. Aug. 30,
1993; Acts 1999, 76th Leg., ch. 679, Sec. 2, eff. Sept. 1, 1999.
Renumbered from Sec. 74.001 and amended by Acts 2003, 78th Leg.,
ch. 204, Sec. 10.01, eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
705, Sec. 1, eff. June 15, 2007.
Sec. 74.152. UNLICENSED MEDICAL PERSONNEL. Persons not
licensed or certified in the healing arts who in good faith
administer emergency care as emergency medical service personnel
are not liable in civil damages for an act performed in
administering the care unless the act is wilfully or wantonly
negligent. This section applies without regard to whether the
care is provided for or in expectation of remuneration.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
Renumbered from Sec. 74.002 and amended by Acts 2003, 78th Leg.,
ch. 204, Sec. 10.01, eff. Sept. 1, 2003.
Sec. 74.153. STANDARD OF PROOF IN CASES INVOLVING EMERGENCY
MEDICAL CARE. In a suit involving a health care liability claim
against a physician or health care provider for injury to or
death of a patient arising out of the provision of emergency
medical care in a hospital emergency department or obstetrical
unit or in a surgical suite immediately following the evaluation
or treatment of a patient in a hospital emergency department, the
claimant bringing the suit may prove that the treatment or lack
of treatment by the physician or health care provider departed
from accepted standards of medical care or health care only if
the claimant shows by a preponderance of the evidence that the
physician or health care provider, with wilful and wanton
negligence, deviated from the degree of care and skill that is
reasonably expected of an ordinarily prudent physician or health
care provider in the same or similar circumstances.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Sec. 74.154. JURY INSTRUCTIONS IN CASES INVOLVING EMERGENCY
MEDICAL CARE. (a) In an action for damages that involves a
claim of negligence arising from the provision of emergency
medical care in a hospital emergency department or obstetrical
unit or in a surgical suite immediately following the evaluation
or treatment of a patient in a hospital emergency department, the
court shall instruct the jury to consider, together with all
other relevant matters:
(1) whether the person providing care did or did not have the
patient's medical history or was able or unable to obtain a full
medical history, including the knowledge of preexisting medical
conditions, allergies, and medications;
(2) the presence or lack of a preexisting physician-patient
relationship or health care provider-patient relationship;
(3) the circumstances constituting the emergency; and
(4) the circumstances surrounding the delivery of the emergency
medical care.
(b) The provisions of Subsection (a) do not apply to medical
care or treatment:
(1) that occurs after the patient is stabilized and is capable
of receiving medical treatment as a nonemergency patient;
(2) that is unrelated to the original medical emergency; or
(3) that is related to an emergency caused in whole or in part
by the negligence of the defendant.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
SUBCHAPTER E. RES IPSA LOQUITUR
Sec. 74.201. APPLICATION OF RES IPSA LOQUITUR. The common law
doctrine of res ipsa loquitur shall only apply to health care
liability claims against health care providers or physicians in
those cases to which it has been applied by the appellate courts
of this state as of August 29, 1977.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
SUBCHAPTER F. STATUTE OF LIMITATIONS
Sec. 74.251. STATUTE OF LIMITATIONS ON HEALTH CARE LIABILITY
CLAIMS. (a) Notwithstanding any other law and subject to
Subsection (b), no health care liability claim may be commenced
unless the action is filed within two years from the occurrence
of the breach or tort or from the date the medical or health care
treatment that is the subject of the claim or the hospitalization
for which the claim is made is completed; provided that, minors
under the age of 12 years shall have until their 14th birthday in
which to file, or have filed on their behalf, the claim. Except
as herein provided this section applies to all persons regardless
of minority or other legal disability.
(b) A claimant must bring a health care liability claim not
later than 10 years after the date of the act or omission that
gives rise to the claim. This subsection is intended as a statute
of repose so that all claims must be brought within 10 years or
they are time barred.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
SUBCHAPTER G. LIABILITY LIMITS
Sec. 74.301. LIMITATION ON NONECONOMIC DAMAGES. (a) In an
action on a health care liability claim where final judgment is
rendered against a physician or health care provider other than a
health care institution, the limit of civil liability for
noneconomic damages of the physician or health care provider
other than a health care institution, inclusive of all persons
and entities for which vicarious liability theories may apply,
shall be limited to an amount not to exceed $250,000 for each
claimant, regardless of the number of defendant physicians or
health care providers other than a health care institution
against whom the claim is asserted or the number of separate
causes of action on which the claim is based.
(b) In an action on a health care liability claim where final
judgment is rendered against a single health care institution,
the limit of civil liability for noneconomic damages inclusive of
all persons and entities for which vicarious liability theories
may apply, shall be limited to an amount not to exceed $250,000
for each claimant.
(c) In an action on a health care liability claim where final
judgment is rendered against more than one health care
institution, the limit of civil liability for noneconomic damages
for each health care institution, inclusive of all persons and
entities for which vicarious liability theories may apply, shall
be limited to an amount not to exceed $250,000 for each claimant
and the limit of civil liability for noneconomic damages for all
health care institutions, inclusive of all persons and entities
for which vicarious liability theories may apply, shall be
limited to an amount not to exceed $500,000 for each claimant.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Sec. 74.302. ALTERNATIVE LIMITATION ON NONECONOMIC DAMAGES. (a)
In the event that Section 74.301 is stricken from this
subchapter or is otherwise to any extent invalidated by a method
other than through legislative means, the following, subject to
the provisions of this section, shall become effective:
(1) In an action on a health care liability claim where final
judgment is rendered against a physician or health care provider
other than a health care institution, the limit of civil
liability for noneconomic damages of the physician or health care
provider other than a health care institution, inclusive of all
persons and entities for which vicarious liability theories may
apply, shall be limited to an amount not to exceed $250,000 for
each claimant, regardless of the number of defendant physicians
or health care providers other than a health care institution
against whom the claim is asserted or the number of separate
causes of action on which the claim is based.
(2) In an action on a health care liability claim where final
judgment is rendered against a single health care institution,
the limit of civil liability for noneconomic damages inclusive of
all persons and entities for which vicarious liability theories
may apply, shall be limited to an amount not to exceed $250,000
for each claimant.
(3) In an action on a health care liability claim where final
judgment is rendered against more than one health care
institution, the limit of civil liability for noneconomic damages
for each health care institution, inclusive of all persons and
entities for which vicarious liability theories may apply, shall
be limited to an amount not to exceed $250,000 for each claimant
and the limit of civil liability for noneconomic damages for all
health care institutions, inclusive of all persons and entities
for which vicarious liability theories may apply, shall be
limited to an amount not to exceed $500,000 for each claimant.
(b) Effective before September 1, 2005, Subsection (a) of this
section applies to any physician or health care provider that
provides evidence of financial responsibility in the following
amounts in effect for any act or omission to which this
subchapter applies:
(1) at least $100,000 for each health care liability claim and
at least $300,000 in aggregate for all health care liability
claims occurring in an insurance policy year, calendar year, or
fiscal year for a physician participating in an approved
residency program;
(2) at least $200,000 for each health care liability claim and
at least $600,000 in aggregate for all health care liability
claims occurring in an insurance policy year, calendar year, or
fiscal year for a physician or health care provider, other than a
hospital; and
(3) at least $500,000 for each health care liability claim and
at least $1.5 million in aggregate for all health care liability
claims occurring in an insurance policy year, calendar year, or
fiscal year for a hospital.
(c) Effective September 1, 2005, Subsection (a) of this section
applies to any physician or health care provider that provides
evidence of financial responsibility in the following amounts in
effect for any act or omission to which this subchapter applies:
(1) at least $100,000 for each health care liability claim and
at least $300,000 in aggregate for all health care liability
claims occurring in an insurance policy year, calendar year, or
fiscal year for a physician participating in an approved
residency program;
(2) at least $300,000 for each health care liability claim and
at least $900,000 in aggregate for all health care liability
claims occurring in an insurance policy year, calendar year, or
fiscal year for a physician or health care provider, other than a
hospital; and
(3) at least $750,000 for each health care liability claim and
at least $2.25 million in aggregate for all health care liability
claims occurring in an insurance policy year, calendar year, or
fiscal year for a hospital.
(d) Effective September 1, 2007, Subsection (a) of this section
applies to any physician or health care provider that provides
evidence of financial responsibility in the following amounts in
effect for any act or omission to which this subchapter applies:
(1) at least $100,000 for each health care liability claim and
at least $300,000 in aggregate for all health care liability
claims occurring in an insurance policy year, calendar year, or
fiscal year for a physician participating in an approved
residency program;
(2) at least $500,000 for each health care liability claim and
at least $1 million in aggregate for all health care liability
claims occurring in an insurance policy year, calendar year, or
fiscal year for a physician or health care provider, other than a
hospital; and
(3) at least $1 million for each health care liability claim and
at least $3 million in aggregate for all health care liability
claims occurring in an insurance policy year, calendar year, or
fiscal year for a hospital.
(e) Evidence of financial responsibility may be established at
the time of judgment by providing proof of:
(1) the purchase of a contract of insurance or other plan of
insurance authorized by this state or federal law or regulation;
(2) the purchase of coverage from a trust organized and
operating under Article 21.49-4, Insurance Code;
(3) the purchase of coverage or another plan of insurance
provided by or through a risk retention group or purchasing group
authorized under applicable laws of this state or under the
Product Liability Risk Retention Act of 1981 (15 U.S.C. Section
3901 et seq.), as amended, or the Liability Risk Retention Act of
1986 (15 U.S.C. Section 3901 et seq.), as amended, or any other
contract or arrangement for transferring and distributing risk
relating to legal liability for damages, including cost or
defense, legal costs, fees, and other claims expenses; or
(4) the maintenance of financial reserves in or an irrevocable
letter of credit from a federally insured financial institution
that has its main office or a branch office in this state.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Sec. 74.303. LIMITATION ON DAMAGES. (a) In a wrongful death or
survival action on a health care liability claim where final
judgment is rendered against a physician or health care provider,
the limit of civil liability for all damages, including exemplary
damages, shall be limited to an amount not to exceed $500,000 for
each claimant, regardless of the number of defendant physicians
or health care providers against whom the claim is asserted or
the number of separate causes of action on which the claim is
based.
(b) When there is an increase or decrease in the consumer price
index with respect to the amount of that index on August 29,
1977, the liability limit prescribed in Subsection (a) shall be
increased or decreased, as applicable, by a sum equal to the
amount of such limit multiplied by the percentage increase or
decrease in the consumer price index, as published by the Bureau
of Labor Statistics of the United States Department of Labor,
that measures the average changes in prices of goods and services
purchased by urban wage earners and clerical workers' families
and single workers living alone (CPI-W: Seasonally Adjusted U.S.
City Average--All Items), between August 29, 1977, and the time
at which damages subject to such limits are awarded by final
judgment or settlement.
(c) Subsection (a) 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.
(d) The liability of any insurer under the common law theory of
recovery commonly known in Texas as the "Stowers Doctrine" shall
not exceed the liability of the insured.
(e) In any action on a health care liability claim that is tried
by a jury in any court in this state, the following shall be
included in the court's written instructions to the jurors:
(1) "Do not consider, discuss, nor speculate whether or not
liability, if any, on the part of any party is or is not subject
to any limit under applicable law."
(2) "A finding of negligence may not be based solely on evidence
of a bad result to the claimant in question, but a bad result may
be considered by you, along with other evidence, in determining
the issue of negligence. You are the sole judges of the weight,
if any, to be given to this kind of evidence."
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
SUBCHAPTER H. PROCEDURAL PROVISIONS
Sec. 74.351. EXPERT REPORT. (a) In a health care liability
claim, a claimant shall, not later than the 120th day after the
date the original petition 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.
(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), 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 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.
[Subsections (d)-(h) reserved]
(i) Notwithstanding any other provision of this section, a
claimant may satisfy any requirement of this section for serving
an expert report by serving reports of separate experts regarding
different physicians or health care providers or regarding
different issues arising from the conduct of a physician or
health care provider, such as issues of liability and causation.
Nothing in this section shall be construed to mean that a single
expert must address all liability and causation issues with
respect to all physicians or health care providers or with
respect to both liability and causation issues for a physician or
health care provider.
(j) Nothing in this section shall be construed to require the
serving of an expert report regarding any issue other than an
issue relating to liability or causation.
(k) Subject to Subsection (t), an expert report served under
this section:
(1) is not admissible in evidence by any party;
(2) shall not be used in a deposition, trial, or other
proceeding; and
(3) shall not be referred to by any party during the course of
the action for any purpose.
(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 represent an objective good faith effort
to comply with the definition of an expert report in Subsection
(r)(6).
[Subsections (m)-(q) reserved]
(r) In this section:
(1) "Affected parties" means the claimant and the physician or
health care provider who are directly affected by an act or
agreement required or permitted by this section and does not
include other parties to an action who are not directly affected
by that particular act or agreement.
(2) "Claim" means a health care liability claim.
[(3) reserved]
(4) "Defendant" means a physician or health care provider
against whom a health care liability claim is asserted. The term
includes a third-party defendant, cross-defendant, or
counterdefendant.
(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 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 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 who is otherwise
qualified to render opinions on such causal relationship under
the Texas Rules of Evidence.
(6) "Expert report" means a written report by an expert that
provides a fair summary of the expert's opinions as of the date
of the report regarding applicable standards of care, the manner
in which the care rendered by the physician or health care
provider failed to meet the standards, and the causal
relationship between that failure and the injury, harm, or
damages claimed.
(s) Until a claimant has served the expert report and curriculum
vitae as required by Subsection (a), all discovery in a health
care liability claim is stayed except for the acquisition by the
claimant of information, including medical or hospital records or
other documents or tangible things, related to the patient's
health care through:
(1) written discovery as defined in Rule 192.7, Texas Rules of
Civil Procedure;
(2) depositions on written questions under Rule 200, Texas Rules
of Civil Procedure; and
(3) discovery from nonparties under Rule 205, Texas Rules of
Civil Procedure.
(t) If an expert report is used by the claimant in the course of
the action for any purpose other than to meet the service
requirement of Subsection (a), the restrictions imposed by
Subsection (k) on use of the expert report by any party are
waived.
(u) Notwithstanding any other provision of this section, after a
claim is filed all claimants, collectively, may take not more
than two depositions before the expert report is served as
required by Subsection (a).
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
Amended by:
Acts 2005, 79th Leg., Ch.
635, Sec. 1, eff. September 1, 2005.
Sec. 74.352. DISCOVERY PROCEDURES. (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.
(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.
(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.
(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) 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.
(e) The time limits imposed under Subsections (a) and (b) may be
extended by the court on the motion of a responding party for
good cause shown and shall be extended if agreed in writing
between the responding party and all opposing parties. In no
event shall an extension be for a period of more than an
additional 30 days.
(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 no later than 45 days after the date of
filing of the pleading by which the party first appeared in the
action.
(g) If information or documents required to provide full and
complete answers and responses as required by this section are
not in the possession of the responding party or attorney when
the answers or responses are filed, the party shall supplement
the answers and responses in accordance with the Texas Rules of
Civil Procedure.
(h) Nothing in this section shall preclude any party from taking
additional non-duplicative discovery of any other party. The
standard sets of interrogatories provided for in this section
shall not constitute, as to each plaintiff and each physician or
health care provider who is a defendant, the first of the two
sets of interrogatories permitted under the Texas Rules of Civil
Procedure.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1,
2003.
SUBCHAPTER I. EXPERT WITNESSES
Sec. 74.401. QUALIFICATIONS OF EXPERT WITNESS IN SUIT AGAINST
PHYSICIAN. (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 practicing medicine at the time such testimony is given
or was practicing medicine at the time the claim arose;
(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
(3) is qualified on the basis of training or experience to offer
an expert opinion regarding those accepted standards of medical
care.
(b) For the purpose of this section, "practicing medicine" or
"medical practice" includes, but is not limited to, training
residents or students at an accredited school of medicine or
osteopathy or serving as a consulting physician to other
physicians who provide direct patient care, upon the request of
such other physicians.
(c) In determining whether a witness is qualified on the basis
of training or experience, the court shall consider whether, at
the time the claim arose or at the time the testimony is given,
the witness:
(1) is board certified or has other substantial training or
experience in an area of medical practice relevant to the claim;
and
(2) is actively practicing medicine in rendering medical care
services relevant to the claim.
(d) The court shall apply the criteria specified in Subsections
(a), (b), and (c) in determining whether an expert is qualified
to offer expert testimony on the issue of whether the physician
departed from accepted standards of medical care, but may depart
from those criteria if, under the circumstances, the court
determines that there is a good reason to admit the expert's
testimony. The court shall state on the record the reason for
admitting the testimony if the court departs from the criteria.
(e) A pretrial objection to the qualifications of a witness
under this section must be made not later than the later of the
21st day after the date the objecting party receives a copy of
the witness's curriculum vitae or the 21st day after the date of
the witness's deposition. If circumstances arise after the date
on which the objection must be made that could not have been
reasonably anticipated by a party before that date and that the
party believes in good faith provide a basis for an objection to
a witness's qualifications, and if an objection was not made
previously, this subsection does not prevent the party from
making an objection as soon as practicable under the
circumstances. The court shall conduct a hearing to determine
whether the witness is qualifi