CHAPTER 74. MEDICAL LIABILITY

State Codes and Statutes

Back To Homepage

State Codes and Statutes

Statutes > Texas > Civil-practice-and-remedies-code > Title-4-liability-in-tort > 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;

(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;

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.

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.

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.

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.

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.

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.

(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.

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.

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.

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.

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;

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.

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.

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

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

Loading..

Loading, Please Wait!