IntroductionIntroduction

HELMS & GREENE, LLC

When it’s all on the line

HOUSE BILL 4

Kirk Willis MEMBER

kwillis@helmsgreene.com

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

Kirk Willis MEMBER

Thank You

kwillis@helmsgreene.com

HELMS GREENE, LLC

When it’s all on the line