Introduction HELMS & GREENE, LLC When it’s all on the line HOUSE BILL 4 Kirk Willis MEMBER [email protected]
Dec 23, 2015
IntroductionIntroduction
HELMS & GREENE, LLC
When it’s all on the line
HOUSE BILL 4
Kirk Willis MEMBER
Good bye Article 4590i, Hello Chapter 74 of the
Civil Practice & Remedies Code.
Good bye Article 4590i, Hello Chapter 74 of the
Civil Practice & Remedies Code.
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 definitionsLets start with the new definitionsLets start with the new definitionsLets start with the new definitions
1.1. ““Claimant”Claimant”2. “Affiliate” 3. “Control”4. “Court”5. “Disclosure panel”6. “Economic damages”7. “Emergency medical care”8. “Emergency medical services
provider”9. “Gross negligence”10.“Health care”
New DefinitionsNew Definitions
““Claimant” means a person, Claimant” means a person, including a decedent’s estate, including a decedent’s estate, seeking or who has sought recovery seeking or who has sought recovery of damages in a health care liability of damages in a health care liability claim. All persons claiming to have claim. All persons claiming to have sustained damages as the result of sustained damages as the result of the bodily injury or death of a the bodily injury or death of a single person are considered a single person are considered a single claimant.single claimant.
Bad Death Case- The Utts ExceptionBad 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 DefinitionsNew Definitions
““Emergency medical care” Emergency medical care”
I.I. Bona fide emergency services Bona fide emergency services providedprovided
II.II. Sudden onset of a medical Sudden onset of a medical trauma or condition trauma or condition
III.III. Acute symptoms of sufficient Acute symptoms of sufficient severityseverity
IV.IV. Lack of medical attention could Lack of medical attention could result in compromise of health.result in compromise of health.
Patient is StabilizedPatient 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:““Health Care Institution” includes:Health Care Institution” includes:
1.1. an ambulatory surgical centeran ambulatory surgical center
2.2. an assisted living facility licensed an assisted living facility licensed under Chapter 247, Health and under Chapter 247, Health and Safety CodeSafety Code
3.3. an emergency medical services an emergency medical services providerprovider
4.4. a health services district created a health services district created under Chapter 287, Health and under Chapter 287, Health and Safety CodeSafety Code
5.5. a home and community support a home and community support services agencyservices agency
6.6. a hospicea hospice
7.7. a hospitala hospital
8.8. a hospital systema hospital system
Chiropractors are now covered under the statute
Chiropractors are now covered under the statute
Optometrist are now covered under the statute
Optometrist are now covered under the statute
New DefinitionsNew Definitions
““Health care provider” Health care provider” (B) The term includes: (B) The term includes:
(i) an officer, director, shareholder, (i) an officer, director, shareholder, owner, or affiliate of a health care member, owner, or affiliate of a health care member, partner, manager provider or physician; andpartner, manager provider or physician; and
(ii) an employee, independent contractor, or (ii) an employee, independent contractor, or agent of a health care provider or physician agent of a health care provider or physician acting in the course and scope of the acting in the course and scope of the employment or contractual relationship.employment or contractual relationship.
Professional Association
Partnership of Limited Liability Partnership formed by physicians
Nonprofit health corporation
Company formed under the Texas Limited Liability Company Act
The Court has also now expanded the definition of Physician
The Court has also now expanded the definition of Physician
It’s All About The Money! It’s All About The Money!
Care
Maintenance
Support
Service
Advice
Counsel
Jury ConsiderationJury 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
No Mix of Business with MedicalNo Mix of Business with Medical
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.
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 AuthorizationsMedical Authorizations
Defendants can now go and talk to plaintiff’s treating physicians after they receive the medical authorization.
Kirk Willis – Mr. Texas Kirk Willis – Mr. Texas
Patient AuthorizationPatient 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 ReformCornerstone 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 CapEconomic Damages No Cap
Lost wages and Medical Expenses unlimited
Apartments
Stocks
Profit Sharing
Cornerstone of Tort ReformCornerstone 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 The most a plaintiff can recover for their non-economic damages if their non-economic damages if they get a negligence finding they get a negligence finding against one physician and two against one physician and two health care institutions is health care institutions is
$750,000.00$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
Experts 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
Causation Causation
Pecuniary LossPecuniary Loss
Care
Maintenance
Support
Service
Advice
Counsel
Loss Earning Over $100,000Loss 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