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HOUSE BILL 4. HELMS & GREENE, LLC. When it’s all on the line. Introduction. Kirk Willis MEMBER. kwillis@helmsgreene.com. Good bye Article 4590i, Hello Chapter 74 of the Civil Practice & Remedies Code. New major changes in 6 areas of the law.

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introduction

HOUSE BILL 4

HELMS & GREENE, LLC

When it’s all on the line

Introduction

Kirk Willis MEMBER

kwillis@helmsgreene.com

new major changes in 6 areas of the law
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

lets start with the new definitions
Lets start with the new definitions
  • “Claimant”
  • “Affiliate”
  • “Control”
  • “Court”
  • “Disclosure panel”
  • “Economic damages”
  • “Emergency medical care”
  • “Emergency medical services provider”
  • “Gross negligence”
  • “Health care”
new definitions
New Definitions

“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.

bad death case the utts exception
Bad Death Case- The Utts Exception

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.

new definitions1
New Definitions

“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.

patient is stabilized
Patient is Stabilized

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.

jury consideration in emergency cases
Jury Consideration in Emergency Cases

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 institution includes
“Health Care Institution” includes:
  • an ambulatory surgical center
  • an assisted living facility licensed under Chapter 247, Health and Safety Code
  • an emergency medical services provider
  • a health services district created under Chapter 287, Health and Safety Code
  • a home and community support services agency
  • a hospice
  • a hospital
  • a hospital system
new definitions2
New Definitions

“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.

the court has also now expanded the definition of physician
The Court has also now expanded the definition of Physician

Professional Association

Partnership of Limited Liability Partnership formed by physicians

Nonprofit health corporation

Company formed under the Texas Limited Liability Company Act

it s all about the money
It’s All About The Money!

Care

Maintenance

Support

Service

Advice

Counsel

jury consideration
Jury Consideration

Relationship between parties

Living arrangement

Any absence for long period of time

Harmony of family unit

Common interests and activities

  • Letters
  • Photos
  • Videotapes
  • Audiotapes
  • Movies
lets now move to notice and pleadings
Lets now move to Notice and Pleadings

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.

medical authorizations
Medical Authorizations

Defendants can now go and talk to plaintiff’s treating physicians after they receive the medical authorization.

patient authorization
Patient 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.

cornerstone of tort reform
Cornerstone of Tort Reform

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

economic damages no cap
Economic Damages No Cap

Lost wages and Medical Expenses unlimited

  • Apartments
  • Stocks
  • Profit Sharing
cornerstone of tort reform1
Cornerstone of Tort Reform

The most the plaintiff can recover for their non-economic damages in a suit against a single health care entity is $250,000.00.

absolute cap
Absolute CAP

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.

stowers doctrine
Stowers Doctrine

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.

experts
Experts

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

experts1
Experts

Set forth the standard of care

How the standard was breached

How the negligent act or omission proximately cause injury

objection to experts
Objection to Experts

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

pecuniary loss
Pecuniary Loss

Care

Maintenance

Support

Service

Advice

Counsel

loss earning over 100 000
Loss Earning Over $100,000

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

slide33

HELMS GREENE, LLC

When it’s all on the line

Thank You

Kirk Willis MEMBER

kwillis@helmsgreene.com