Legislative Update/Tort Reform 9/5/2003

MEDICAL MALPRACTICE

  1. "Claimant" is going to include all persons claiming to have sustained damages as a result of the injury or death.
  2. "Economic damages" (Chapter 41.001) means compensatory damages intended to compensate a claimant for actual economic or pecuniary loss (not punitive or non-economic damages).
  3. "Non-economic damages" (Chapter 41.001) means damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other non-pecuniary loss of any kind other than exemplary damages.
  4. Any person asserting a health care liability claim shall give written notice by CMRRR to each physician or health care provider at least 60 days before filing suit, and the notice must be accompanied by an authorization for release of protected health information as set forth in Sec. 74.052. It allows the health care provider to get the following information:
    1. Subsequent treating doctors or health care providers;
    2. Records from health care providers or doctors who examined, evaluated, or treated the patient for five years prior to the incident; and
    3. A list of all doctors who have health care information concerning the patient, but for which the patient contends that information is not relevant to the claim.
  5. The authorization is good until the resolution of the claim asserted or conclusion of the litigation.
  6. It allows the potential defendant to disclose all information to everyone in the litigation chain.
  7. Proper notice given tolls the statute of limitations 75 days. Tolling applies to all parties and potential parties.
  8. The parties shall be entitled to obtain a complete copy of the records within 45 days of the date of receipt of a written request for such records.
  9. In plaintiff's pleadings, the pleading shall not specify an amount of money claimed as damages unless there is a special exception. Also, must plead the notice and authorization requirements have been met.
  10. Emergency Medical Care. 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 a bodily organ or part. Once a patient is stabilized and can receive medical treatment as a non-emergency patient, the term does not apply. In an emergency care setting (including emergency department, obstetrical unit, or surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department), the plaintiff can win only if they can prove by a preponderance of the evidence that the health care provider acted with willful and wanton negligence as compared to the accepted standard of medical care. (Sec. 74.153)

    Additionally, the court will instruct the jury to consider:
    1. knowledge of the patient's medical history;
    2. the presence (or lack of) a pre-existing physician/patient relationship;
    3. circumstances constituting the emergency; and
    4. circumstances surrounding the delivery of the emergency medical care.
  11. Statute of limitations. The statute of limitations is two years from the occurrence of the breach or tort or from the date of the medical or health care treatment that is the subject of the claim, or the hospitalization for which the claim is made is completed.
    1. Minors under the age of 12 shall have until their 14 th birthday;
    2. There is a statute of repose of ten years from the date of the act or omission.
  12. Non-economic damage caps:
    1. $250,000 for all doctors and health care providers ("inclusive of all persons and entities for which vicarious liability theories may apply"), regardless of the number of defendant physicians or health care providers other than a health care institution.
    2. $250,000 against any health care institution with the total limit not to exceed $500,000 against all health care institutions.
    3. No adjustment for inflation.
  13. Quid pro quo . If the limitation on non-economic damages under Section 74.301 is stricken, the legislature has a back up system to apply basically the same limitations as long as the physician or health care institution has ample evidence of its financial responsibility.
  14. Limitation on damages in death cases. The limit of civil liability for all damages (including exemplary damages) is limited to $500,000 for each claimant, regardless of the number of defendant physicians in wrongful death or survival action. This limitation does not apply to medical expenses incurred.
  15. There is a consumer price index adjustment from August 29, 1977, for wrongful death/survival cases only (CPI-W).
    15A. Stowers Doctrine: "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."
    15B. Nursing Homes: State surveys and violations are no longer admissible unless the evidence relates to a material violation as is relevant to a particular incident and a particular individual whose personal injury claim is the basis of the lawsuit, or a finding by the department that directly involves substantially similar conduct that occurred within a period of one year before the particular incident made the basis of the lawsuit; and that evidence has been affirmed by entry of final adjudication and unappealable order after formal appeal.
  16. On health care liability claim, the court shall instruct the jury:
    1. not to consider whether any party is or is nor subject to a limit under any applicable law; and
    2. that a finding of negligence may not be based solely on the evidence of a bad result to the plaintiff.
  17. Expert report.
    1. 120 day limit: must serve an expert report (with a CV) for each defendant sued;
    2. The defendant who objects to the sufficiency of the report must file an objection 21 days after it was served or all objections are waived;
    3. If no report is served within the time specified (or an agreed upon time), the court shall enter an order that (i) awards the health care reasonable attorneys' fees and costs of court incurred, and (ii) dismiss the claim with prejudice as to that health care provider.
    4. If the expert report served is found to be deficient (and thus not served), the court may grant one 30-day extension to cure the deficiency;
    5. Causation opinions must be given by qualified doctors;
    6. The report served is not admissible in evidence by any party; shall not be used in deposition, trial or other proceedings; and shall not be referred to by any party during the case for any purpose;
    7. If the expert report is used by the claimant for any purpose other than to meet the service requirements, restrictions imposed on the use of the report by any party are waived; and
    8. the court shall grant the motion challenging the adequacy of the expert report only if it appears to the court, after hearing, the report does not represent an objective good faith effort to comply with the expert report requirements;
    9. Chapter 51.041 (TCPRC) allows an interlocutory appeal from a denial of all or a part of the court's order to award reasonable attorneys' fees and costs of court and dismissal, or if the court grants a motion challenging the adequacy of the report. This appeal stays commencement of the trial pending resolution of the appeal.
  18. No discovery vs. expert report. 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.
    1. Can propound written discovery;
    2. page 74
    3. page 74
    4. page 74
  19. Discovery procedures.
    1. If interrogatories and requests for production are promulgated timely, the plaintiff is required to serve within 45 days after the date of filing of the original petition, full and complete answers.
    2. within 45 days after the date which the answer was due, the defendants must respond to a standard set of discovery; and
    3. no objections permitted
    4. failure to respond to these discovery requests (or filing objections) is grounds for sanctions.
  20. Non-duplicative discovery may also be sent to any party and the standard set does not count as the first set.
  21. Tighter expert qualifications requirements (74.401-74.403)
  22. Structured settlement for future damages. The statute defines future damages and opposed to future loss of earnings.
    1. "Future damages" means damages incurred after the date of judgment for medical bills, pain and suffering, loss of consortium, and loss of earnings;
    2. "Future loss of earnings" means losses incurred after the date of judgment for loss of income or wages, earning capacity, pecuniary losses, and loss of inheritance; and
    3. The statute applies only to an award of "future damages" that equals or exceeds $100,000.
  23. If a defendant requests, the court is required to order medical, health care, or custodial services to be paid in whole or in part in periodic payments rather than by lump sum payment.
  24. If a defendant requests, the court may order that future damages other than medical, health care, or custodial services be paid in whole or in part in periodic payments.
  25. The court must first determine the necessary lump sum amount, and then is required to set out in the judgment who the recipient of the periodic payments is to be, the dollar amount, the interval between the payments, and the number of payments or period of time.
  26. The court can order the payments be made through an annuity company, an obligation of the United States, applicable and collectible liability insurance, or any other satisfactory form of funding approved by the court.
  27. If the recipient dies, the estate receives only the loss of future earnings without a reduction. However, periodic payments, other than future loss of earnings, terminate on the death of the recipient, and the return of the security for the periodic payments is returned to the defendant.
  28. "If the recipient of periodic payments dies before all payments required by the judgment are paid, the court may modify the judgment to award and apportion the unpaid damages for future loss of earnings in an appropriate manner."
    1. attorneys' fees on periodic payments will be awarded based on the present cash value of the total value of payments to be made.
  29. Charitable Immunity (Chapter 84 TCPRC): There are certain hospitals and their employees who have limits of liability at $500,000 for medical malpractice cases under the following circumstances:
    1. Patient signs a written statement that acknowledges the hospital is providing care that is not administered for or in expectation of compensation; and
    2. The patient signs a written statement that acknowledges the limitations on the recovery of damages from the hospital in exchange for receiving the health care services.
  30. This applies even if the patient is incapacitated due to illness or injury and cannot sign the acknowledgment statement.
    If these requirements are met, the hospital and its employees are exposed to a maximum amount of damages of $500,000.
  31. Governmental Immunity. The legislature amended Chapter 108 of the TCPRC for limitation of liability for public servants that now includes health care providers who are deemed to be "public servants." This basically includes all governmental employees.
    In these instances, governmental health care provider employees will be liable for damages only up to $100,000. This would include residents, attending physicians, nurses of government hospitals.
  32. Municipal Hospital Management Contractors have liability limited to Torts Claims Act's limitations.
  33. "Exemplary damages" change to "damages." Chapter 41 of the TCPRC has changed its title from "exemplary damages" to "damages."
  34. Malice means only a specific intent by the defendant to cause substantial injury or harm to the claimant.
    34A "Gross negligence" means an act or omission (a) which when viewed objectively from a standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the magnitude of the potential harm to others; and (b) of which the actor has actual, subjective awareness of the risks involved, but nevertheless proceeds with conscious indifference to the rights, safety, and welfare of others.
  35. Gross negligence - exemplary damages may be awarded if gross negligence is proven by clear and convincing evidence, as well as for fraud and malice.
  36. Exemplary damages may be awarded only if the jury was unanimous with regard to the finding of liability for an amount of exemplary damages. A jury instruction is given to this effect.
  37. Cap busting applies for criminal conduct, "but not if the conduct occurred while providing health care as defined by Section 74.001" ... for children, elderly or disabled individuals.
  38. Medical economic damages are limited to the amount actually paid or incurred on behalf of the claimant. This means insurance and government benefits are the amounts.
  39. Chapter 18 (TCPRC) - For loss of earning capacity, loss of contributions of a pecuniary value, or loss of inheritance, proof must be in the form of a net loss after reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law.
  40. Further, the court shall instruct the jury as to whether the recovery for compensatory damages is subject to federal or state income tax.
  41. Additional protections have been provided to school district employees, successor asbestos related liability defendants, volunteers in charitable organizations, volunteer fire departments, volunteer fire fighters, architects and engineers.
  42. Non-profit or charity hospitals that are defined in the statute receive a liability protection limit of $100,000 per person and $300,000 per any single occurrence for non-economic damages due to personal injury or death.
  43. Settlements: Chapter 42 (TCPRC)
    Supreme Court shall promulgate rules implementing settlement offers and the recovery of litigation costs, including
    1. the date by which a defendant must file a declaration invoking this Chapter;
    2. the date before which a party may not make a settlement offer;
    3. the date after which a party may not make a settlement offer; and
    4. procedures for making an initial settlement offer, making successive settlement offers, withdrawing a settlement offer, accepting a settlement offer, rejecting a settlement offer, and modifying the deadlines.
  44. Definitions:
    1. "Litigation costs" means money actually spent and obligations actually incurred that are directly related to the case, including court costs, reasonable fees for not more than two testifying experts, and reasonable attorneys' fees.
  45. Application of settlement offer does not apply until the defendant files a declaration that the settlement procedure allowed by this Chapter is available in the action. Each defendant must make the declaration to be applicable to that defendant.
  46. If the offer to settle or compromise is not made under this Chapter, then the recovery of litigation costs does not apply.
  47. To qualify the settlement offer must:
    1. be in writing;
    2. state it is made under this Chapter;
    3. state the terms by which the claims may be settled;
    4. state a deadline by which a settlement offer must be accepted; and
    5. served on all parties to whom the settlement offer is made.
  48. Litigation costs are awarded from a rejecting party if
    1. the rejecting claimant is awarded less than 80% of the rejected offer, or
    2. the rejecting defendant is hit for more than 120% of the rejected offer.
  49. The litigation costs that may be recovered are only those incurred by the offering party after the date the rejecting party rejects the settlement offer.
  50. Litigation costs are limited to determining the sum of:
    1. 50% of the economic damages awarded to the claimant in a judgment;
    2. 100% of the non-economic damages awarded in a judgment;
    3. 100% of the exemplary or additional damages awarded in a judgment; and
    4. Subtracting from the total the amount of any statutory or contractual liens in connection with the occurrence.
  51. If a party is entitled to recover fees and costs under another law (i.e., DTPA), the party may not recover litigation costs in addition to those already recoverable.
  52. If litigation costs are to be awarded against a claimant, that amount shall be awarded to the defendant in the judgment as an offset against claimants recovery from that defendant.