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LANDMARK MEDICAL LIABILITY REFORMS REMAIN INTACT

  
 

For the third successive legislative session, the state’s 2003 medical liability reforms came under attack and emerged unscathed. All told, the personal injury bar pushed roughly 900 pieces of legislation that would have rolled back existing reforms, created new ways to sue or expanded existing causes of action. Fortunately, we were able to defeat them at every turn. Thank you to those who made visits and phone calls and sent emails to your legislator opposing harmful bills.

Following are the key bills we defeated this session. Many of the measures resurfaced late in the session as amendments to other bills. Those too were defeated.

  


SB 152-Emergency Care
SB 152 (by Senator Rodney Ellis) would affirm the gross negligence standard but extend emergency care protections only to Good Samaritans. The bill failed to recognize the unique challenges in diagnosing and treating emergency care cases. Whether treating an unconscious victim of an auto accident or a diabetic woman in delivery, emergency care doctors must respond quickly with limited time and information. Often, the doctor has no health history of the patient. Since the passage of the 2003 reforms, 82 Texas counties have seen a net gain in emergency physicians, including 26 counties that previously had none. Removal of emergency protections would discourage doctors from taking call, increase the cost doctors pay for liability insurance, and put critical care patients at risk.

Heard in Senate State Affairs March 26. Died in committee.

SB 1119/ HB 1956—Paid or Incurred
SB 1119 (by Senator Juan Hinojosa) and HB 1956 (by Representative John Smithee) would have permitted plaintiffs to collect discounted or forgiven medical bills. These phantom damages typically involve the pursuit of full medical charges billed by the physician or healthcare provider rather than the reduced amount paid by the health insurer. Rather than increase meritorious claims, the proposed law change would merely increase fake damage claims and inflate settlement demands. A plaintiff should not be able to recover phantom damages. Forgiven bills should be just that—forgiven—not a windfall for the plaintiff.

SB 1119 was reported out of Senate State Affairs March 25. The bill was placed on the intent calendar twice but never made it to the Senate floor. The House companion bill, HB 1956, was heard in House Judiciary & Civil Jurisprudence March 30. It was left pending in committee where it died.

SB 1007/ HB 2203 – Texas Department of Insurance Sunset Bill
Two proposed amendments to the TDI Sunset Bill (SB 1007 by Sen. Glenn Hegar)—paid or incurred and multi-district litigation-represent the first attacks on the 2003 landmark medical lawsuit reforms scheduled for the House floor. A plaintiff should not be able to collect phantom damages. Forgiven bills should be just that—forgiven—not a windfall for the plaintiff. The MDL provisions in Texas statute pattern federal law; are time and cost efficient and widely praised by both plaintiff and defense. Why change a law that is working? Questions of common fact for cases involving joint replacement, medical screws and other implantable medical devices should appropriately be heard by a judge with experience in such matters. SB 1007 should be kept clean and intrusions into medical tort reforms should be kept off of the bill.

Reported favorably as substituted out of Senate Government Organization April 6. Passed the full Senate with amendments April 20. Favorably passed out of House Insurance Committee May 18. Placed on the major state calendar May 23 where it subsequently died. Texas Department of Insurance was included in the sunset safety net through HCR 291. No harmful amendments were attached to the resolution. Texas Department of Insurance will come up for sunset again next session.



  




HB 4249- Expert Report Requirements
and Pre-report Discovery
HB 4249 (by Representative David Leibowitz), as originally filed, would have reversed six years of appellate court decisions regarding expert report requirements and pre-report discovery. Extending the 120 deadline to file an expert report is not necessary. A defendant can be served by certified mail, publication or substitute service. The current pre-suit limitation is on oral depositions only. There is no limitation on written depositions. Favoring more discovery would merely increase costs for a set of claims that are dropped or dismissed 80-85% of the time.

Moreover, creating objections to the adequacy of an expert report is a procedural “gotcha” for the plaintiff’s bar. It forces defendants to incur the burden and expense of explaining to claimants what they need to do comply with the statute and then fighting over whether they did a good enough job of drawing the roadmap. No objection will be detailed enough. The Committee Substitute to HB 4249, while an improvement over the original bill, would nevertheless have added unnecessary costs and delays to our civil justice system and allowed more meritless liability cases to move forward. More importantly, the committee substitute was a “Trojan Horse” for much broader attacks that would immediately weaken Texas’ landmark 2003 health care liability reforms.

Reported favorably as substituted in House Judiciary & Civil Jurisprudence May 4. Sent to Calendars where it died.

SB 153-Oral Depositions
SB 153 (by Senator Rodney Ellis) would have permitted oral depositions of parties or non-parties prior to the service of an expert report. Essentially, the bill would have invited fishing expeditions which would only produce more speculative lawsuits and increase defense costs. Adoption of this revision would have encouraged ambush depositions where parties would be put under oath without knowing the accusations or the probable line of questioning. The plaintiff already has the medical and hospital records, the right to two oral depositions, and the ability to seek written depositions of parties. Their expert ought to readily know whether negligence occurred and what harm, if any, it caused.

Referred to Senate State Affairs. The bill has not had a hearing.

SB 1267/ HB 2367—Transfer of Probate Matters
SB 1267 (by Senator Juan Hinojosa) and HB 2367 (by Representative Will Hartnett) would have allowed a probate court judge to take a cause of action pending in another court over the objection of either party and without the consent of the district judge. To do so would have posed a conflict of interest in that the probate judge’s job is, in part, to maximize the recovery of the estate. The concept SB 1267 and HB 2367 advanced was expressly rejected by the Texas Supreme Court in 2005 in Gonzalez v. Reliant Energy.

HB 2367 was heard in House Judiciary & Civil Jurisprudence April 22 where the bill subsequently died. The companion bill, SB 1267, was referred to Senate Jurisprudence March 17 but never got a hearing.