Texas 2009 - 81st Regular

Texas House Bill HB2868 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R11809 TJS-D
2	2	By: Strama H.B. No. 2868
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to full disclosure of certain events for a health care
8	8	practitioner or health care institution.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subtitle B, Title 4, Health and Safety Code, is
11	11	amended by adding Chapter 260 to read as follows:
12	12	CHAPTER 260. REQUIRED DISCLOSURE
13	13	Sec. 260.001. DEFINITIONS. In this chapter:
14	14	(1) "Communication of sympathy" means a statement or a
15	15	gesture that conveys a sense of compassion emanating from humane
16	16	impulses, and expresses sympathy or a general sense of benevolence
17	17	relating to the pain, suffering, or death of a patient who receives
18	18	health care from, at, through, or administered by a health care
19	19	institution.
20	20	(2) "Covered event" means an event that causes an
21	21	unanticipated outcome to a patient who receives health care
22	22	services from, at, or through a health care institution.
23	23	(3) "Disclosure" means a statement, whether in writing
24	24	or in a face-to-face meeting, that an employee, officer, director,
25	25	trustee, health care practitioner, or other representative of a
26	26	health care institution makes to a patient or a patient's
27	27	representative that notifies the patient or patient's
28	28	representative of the occurrence of a covered event and explains or
29	29	acknowledges fault for the occurrence of the covered event, if
30	30	appropriate.
31	31	(4) "Health care institution" has the meaning assigned
32	32	by Section 74.001, Civil Practice and Remedies Code.
33	33	(5) "Health care practitioner" means an individual,
34	34	including a physician:
35	35	(A) issued a license, certificate, registration,
36	36	title, permit, or other authorization to engage in a health care
37	37	profession under Chapter 155, 201, 202, 204, 256, 301, or 558,
38	38	Occupations Code; and
39	39	(B) who has been granted clinical privileges or
40	40	is authorized to provide medical or health care services at a health
41	41	care institution.
42	42	(6) "Patient's representative" means:
43	43	(A) a person related to a patient within the
44	44	second degree by consanguinity or affinity, as determined under
45	45	Subchapter B, Chapter 573, Government Code; or
46	46	(B) a legal guardian, trustee, authorized
47	47	attorney, or other legal agent authorized to make health care
48	48	decisions for a patient.
49	49	Sec. 260.002. DISCLOSURE POLICY REQUIRED. (a) A health
50	50	care institution shall:
51	51	(1) adopt, implement, and enforce a policy of prompt
52	52	disclosure to a patient or the patient's representative of any
53	53	occurrence of a covered event;
54	54	(2) include in a disclosure or a subsequent discussion
55	55	about a covered event:
56	56	(A) an explanation of the event;
57	57	(B) an acknowledgment of fault, if appropriate;
58	58	and
59	59	(C) an explanation of the steps the health care
60	60	institution is taking to prevent a similar event from occurring in
61	61	the future, if appropriate;
62	62	(3) provide notice to each patient that the health
63	63	care institution has adopted the policy; and
64	64	(4) refer all covered events to the health care
65	65	institution's existing peer review, quality improvement, or
66	66	performance improvement process, as applicable.
67	67	(b) A health care institution shall make an initial
68	68	disclosure under this chapter as soon as practicable but not later
69	69	than 48 hours after the time the health care institution learns of
70	70	the occurrence of a covered event. After making an initial
71	71	disclosure, a health care institution shall make additional
72	72	disclosures as needed to provide a patient or patient's
73	73	representative additional information as it becomes available.
74	74	Sec. 260.003. RELEVANCE OF DISCLOSURE FOR LICENSING. In
75	75	considering an application for a license or renewal of a license
76	76	under this title, or in a hearing or other proceeding that may
77	77	result in disciplinary action against a health care institution,
78	78	the licensing entity may not consider:
79	79	(1) a disclosure required by this chapter that is:
80	80	(A) made by an employee, officer, director,
81	81	trustee, health care practitioner, or other representative of the
82	82	applicant or license holder;
83	83	(B) made to the patient or the patient's
84	84	representative; and
85	85	(C) offered to prove liability or fault, in
86	86	relation to the patient, of the applicant or license holder; or
87	87	(2) a communication of sympathy that is:
88	88	(A) made in connection with a disclosure required
89	89	by this chapter;
90	90	(B) made by an employee, officer, director,
91	91	trustee, health care practitioner, or other representative of the
92	92	applicant or license holder;
93	93	(C) made to the patient or the patient's
94	94	representative; and
95	95	(D) offered to prove liability or fault, in
96	96	relation to the patient, of the applicant or license holder.
97	97	SECTION 2. Subtitle A, Title 3, Occupations Code, is
98	98	amended by adding Chapter 115 to read as follows:
99	99	CHAPTER 115. REQUIRED DISCLOSURE
100	100	Sec. 115.001. DEFINITIONS. In this chapter:
101	101	(1) "Communication of sympathy" means a statement or a
102	102	gesture that conveys a sense of compassion emanating from humane
103	103	impulses, and expresses sympathy or a general sense of benevolence
104	104	relating to the pain, suffering, or death of a patient who receives
105	105	health care administered by a health care practitioner.
106	106	(2) "Covered event" means an event that causes an
107	107	unanticipated outcome to a patient who receives health care
108	108	services administered by a health care practitioner.
109	109	(3) "Disclosure" means a statement, whether in writing
110	110	or in a face-to-face meeting, that a health care practitioner makes
111	111	to a patient or a patient's representative that notifies the
112	112	patient or patient's representative of the occurrence of a covered
113	113	event and explains or acknowledges fault for the occurrence of the
114	114	covered event if appropriate.
115	115	(4) "Health care practitioner" means an individual,
116	116	including a physician, issued a license, certificate,
117	117	registration, title, permit, or other authorization to engage in a
118	118	health care profession under Chapter 155, 201, 202, 204, 256, 301,
119	119	or 558.
120	120	(5) "Patient's representative" means:
121	121	(A) a person related to a patient within the
122	122	second degree by consanguinity or affinity, as determined under
123	123	Subchapter B, Chapter 573, Government Code; or
124	124	(B) a legal guardian, trustee, authorized
125	125	attorney, or other legal agent authorized to make health care
126	126	decisions for a patient.
127	127	Sec. 115.002. DISCLOSURE REQUIRED. (a) A health care
128	128	practitioner shall:
129	129	(1) promptly disclose to a patient or the patient's
130	130	representative any occurrence of a covered event; and
131	131	(2) include in a disclosure or a subsequent discussion
132	132	about a covered event:
133	133	(A) an explanation of the event;
134	134	(B) an acknowledgment of fault, if appropriate;
135	135	and
136	136	(C) an explanation of the steps the practitioner
137	137	is taking to prevent a similar event from occurring in the future,
138	138	if appropriate.
139	139	(b) A health care practitioner shall make an initial
140	140	disclosure under this chapter as soon as practicable but not later
141	141	than 48 hours after the time the health care practitioner learns of
142	142	the occurrence of a covered event. After making an initial
143	143	disclosure, a health care practitioner shall make additional
144	144	disclosures as needed to provide a patient or patient's
145	145	representative additional information as it becomes available.
146	146	(c) A health care practitioner is not required to disclose a
147	147	covered event under this section if the health care practitioner is
148	148	employed by or under contract with a health care institution and the
149	149	covered event is disclosed to the patient or the patient's
150	150	representative under the disclosure policy of the health care
151	151	institution as required by Chapter 260, Health and Safety Code.
152	152	Sec. 115.003. RELEVANCE OF DISCLOSURE FOR LICENSING. In
153	153	considering an application for a license or renewal of a license
154	154	under this title, or in a hearing or other proceeding that may
155	155	result in disciplinary action against a health care practitioner,
156	156	the licensing entity may not consider:
157	157	(1) a disclosure required by this chapter that is:
158	158	(A) made by an applicant or license holder;
159	159	(B) made to the patient or the patient's
160	160	representative; and
161	161	(C) offered to prove liability or fault, in
162	162	relation to the patient, of the applicant or license holder; or
163	163	(2) a communication of sympathy that is:
164	164	(A) made in connection with a disclosure required
165	165	by this chapter;
166	166	(B) made by an applicant or license holder;
167	167	(C) made to the patient or the patient's
168	168	representative; and
169	169	(D) offered to prove liability or fault, in
170	170	relation to the patient, of the applicant or license holder.
171	171	SECTION 3. Subchapter H, Chapter 74, Civil Practice and
172	172	Remedies Code, is amended by adding Section 74.353 to read as
173	173	follows:
174	174	Sec. 74.353. COMMUNICATIONS OF SYMPATHY. (a) In this
175	175	section, "communication of sympathy" means a statement or a gesture
176	176	that conveys a sense of compassion emanating from humane impulses,
177	177	and expresses sympathy or a general sense of benevolence relating
178	178	to the pain, suffering, or death of a patient who receives health
179	179	care from, at, through, or administered by a defendant.
180	180	(b) If a health care institution or health care practitioner
181	181	makes an offer of settlement in connection with a covered event
182	182	under Chapter 260, Health and Safety Code, or Chapter 115,
183	183	Occupations Code, conditioned on a release of liability by the
184	184	patient or the patient's representative, the health care
185	185	institution or health care practitioner shall, prior to settlement
186	186	and release of liability, advise the patient or the patient's
187	187	representative of the right to seek legal counsel. If a health care
188	188	institution or health care practitioner fails to provide notice to
189	189	a patient or patient's representative of the right to seek legal
190	190	counsel, any settlement and release is voidable by and
191	191	unenforceable against the patient or patient's representative.
192	192	(c) In an action on a health care liability claim, a court
193	193	may not admit, nor permit or compel discovery of:
194	194	(1) a disclosure required by Chapter 260, Health and
195	195	Safety Code, or Chapter 115, Occupations Code, that is:
196	196	(A) made by the defendant, or by an employee,
197	197	officer, director, trustee, or other representative of the
198	198	defendant;
199	199	(B) made to the patient or the patient's
200	200	representative; and
201	201	(C) offered to prove liability or fault, in
202	202	relation to the patient, of the applicant or license holder;
203	203	(2) a communication of sympathy that is:
204	204	(A) made in connection with a disclosure required
205	205	by Chapter 260, Health and Safety Code, or Chapter 115, Occupations
206	206	Code;
207	207	(B) made by an applicant or license holder;
208	208	(C) made to the patient or the patient's
209	209	representative; and
210	210	(D) offered to prove liability or fault, in
211	211	relation to the patient, of the applicant or license holder; and
212	212	(3) an offer of settlement that is:
213	213	(A) made by the defendant or an employee,
214	214	officer, director, trustee, or other representative of the
215	215	defendant;
216	216	(B) made to the patient or the patient's
217	217	representative; and
218	218	(C) offered to prove the liability or fault, in
219	219	relation to the patient, of the applicant or license holder.
220	220	(d) Except as provided by Subsection (f), a communication
221	221	made by a patient or the patient's representative in relation to a
222	222	communication or disclosure under this section is not discoverable
223	223	or admissible in an action on a health care liability claim.
224	224	(e) Subsections (a), (b), (c), and (d) only affect the
225	225	admissibility and discoverability of a communication described by
226	226	those subsections and do not affect the admissibility or
227	227	discoverability of other information relating to the underlying
228	228	event about which the communication was made.
229	229	(f) This section does not apply to a communication made on
230	230	or after the date a notice asserting a health care liability claim
231	231	under Section 74.051 is received.
232	232	(g) Section 18.061 does not apply to an action on a health
233	233	care liability claim under this chapter.
234	234	SECTION 4. The change in law made by this Act applies only
235	235	to an action, license application proceeding, or proceeding that
236	236	may result in the denial, suspension, or revocation of a license,
237	237	commenced on or after the effective date of this Act. An action,
238	238	license application proceeding, or proceeding that may result in
239	239	the denial, suspension, or revocation of a license, commenced
240	240	before the effective date of this Act is covered by the law in
241	241	effect when the action was commenced, and the former law is
242	242	continued in effect for that purpose.
243	243	SECTION 5. This Act takes effect immediately if it receives
244	244	a vote of two-thirds of all the members elected to each house, as
245	245	provided by Section 39, Article III, Texas Constitution. If this
246	246	Act does not receive the vote necessary for immediate effect, this
247	247	Act takes effect September 1, 2009.