HOUSE BILL 4. HELMS & GREENE, LLC. When it’s all on the line. Introduction. Kirk Willis MEMBER. firstname.lastname@example.org. Good bye Article 4590i, Hello Chapter 74 of the Civil Practice & Remedies Code. New major changes in 6 areas of the law.
New definitions with an expanded scope of Health Care Institutions and Health Care Providers
New Damage Caps for Non-economic Damages
New Provisions Re: Emergency Care
New Procedures for Notice, Expert Reports (No More Cost Bonds) and Discovery
New Statutes of Repose
New periodic payment provisions for future
“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.
Utts v. Short which came out of the Texas Supreme Court about a year ago. In Utts, there were several plaintiffs in a lawsuit and one of the defendants settled out.
“Emergency medical care”
Bona fide emergency services provided
Sudden onset of a medical trauma or condition
Acute symptoms of sufficient severity
Lack of medical attention could result in compromise of health.
I would like to point out that the term does not cover medical care after the patient is stabilized. There are special protections in the new statute for those who render emergency care.
Whether the person providing care did or did not have the patients medical history
The presence or lack of a preexisting physician- patient relationship
The circumstances constituting the emergency
The circumstances surrounding the delivery of the emergency medical care
“Health care provider”
(B) The term includes:
(i) an officer, director, shareholder, owner, or affiliate of a health care member, partner, manager 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.
Partnership of Limited Liability Partnership formed by physicians
Nonprofit health corporation
Company formed under the Texas Limited Liability Company Act
Relationship between parties
Any absence for long period of time
Harmony of family unit
Common interests and activities
Plaintiffs must now give 60 days written notice before filing a med mal suit.
This notice must be accompanied by a medical authorization which form is set out in Section 74.052.
If notice is given it tolls the statute of limitations for 75 days against all parties to whom it is given and all potential parties. So we really have a statute of limitations in Texas of 2 years and 75 days.
Defendants can now go and talk to plaintiff’s treating physicians after they receive the medical authorization.
The plaintiffs have the option under of listing health care providers who they have seen in the last 5 years which they contend are not related to the issues in the current lawsuit.
1 physician, 6 physicians or 10 physicians, the most the plaintiff can recover in all of those situations for their non-economic damages is $250,000.00
Lost wages and Medical Expenses unlimited
The most the plaintiff can recover for their non-economic damages in a suit against a single health care entity is $250,000.00.
The most a plaintiff can recover for their non-economic damages if they get a negligence finding against one physician and two health care institutions is $750,000.00.
Basically there is no more Stowers doctrine in Texas for med mal cases as the liability of any insurer shall not exceed the liability of the insured.
Plaintiff’s must still provide expert reports. Now it must be done with 120 days after the claim was filed.
The date can be extended by agreement of the parties.
If you are to object to the report you must do it now within 21 days after you get it or you have waived you objections
Set forth the standard of care
How the standard was breached
How the negligent act or omission proximately cause injury
Objection to the qualifications an expert witness must be filed on the 21st day after you get the expert’s resume or 21 days after his deposition, whichever is later
You can move the court to pay these future damages in periodic payments
The court shall order these periodic payments
Courts discretion to determine the amount of the payments, to whom they will be made
Future damages by periodic payments constitutes a release of the health care liability claim
When it’s all on the line
Kirk Willis MEMBER