81R10749 YDB-F
By: Leibowitz H.B. No. 3101
A BILL TO BE ENTITLED
AN ACT
relating to the deceptive trade practice of charging for certain
preventable adverse health care events.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 17.46(b), Business & Commerce Code, is
amended to read as follows:
(b) Except as provided in Subsection (d) of this section,
the term "false, misleading, or deceptive acts or practices"
includes, but is not limited to, the following acts:
(1) passing off goods or services as those of another;
(2) causing confusion or misunderstanding as to the
source, sponsorship, approval, or certification of goods or
services;
(3) causing confusion or misunderstanding as to
affiliation, connection, or association with, or certification by,
another;
(4) using deceptive representations or designations
of geographic origin in connection with goods or services;
(5) representing that goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, or quantities which they do not have or that a person has
a sponsorship, approval, status, affiliation, or connection which
he does not;
(6) representing that goods are original or new if
they are deteriorated, reconditioned, reclaimed, used, or
secondhand;
(7) representing that goods or services are of a
particular standard, quality, or grade, or that goods are of a
particular style or model, if they are of another;
(8) disparaging the goods, services, or business of
another by false or misleading representation of facts;
(9) advertising goods or services with intent not to
sell them as advertised;
(10) advertising goods or services with intent not to
supply a reasonable expectable public demand, unless the
advertisements disclosed a limitation of quantity;
(11) making false or misleading statements of fact
concerning the reasons for, existence of, or amount of price
reductions;
(12) representing that an agreement confers or
involves rights, remedies, or obligations which it does not have or
involve, or which are prohibited by law;
(13) knowingly making false or misleading statements
of fact concerning the need for parts, replacement, or repair
service;
(14) misrepresenting the authority of a salesman,
representative or agent to negotiate the final terms of a consumer
transaction;
(15) basing a charge for the repair of any item in
whole or in part on a guaranty or warranty instead of on the value of
the actual repairs made or work to be performed on the item without
stating separately the charges for the work and the charge for the
warranty or guaranty, if any;
(16) disconnecting, turning back, or resetting the
odometer of any motor vehicle so as to reduce the number of miles
indicated on the odometer gauge;
(17) advertising of any sale by fraudulently
representing that a person is going out of business;
(18) advertising, selling, or distributing a card
which purports to be a prescription drug identification card issued
under Section 4151.152, Insurance Code, in accordance with rules
adopted by the commissioner of insurance, which offers a discount
on the purchase of health care goods or services from a third party
provider, and which is not evidence of insurance coverage, unless:
(A) the discount is authorized under an agreement
between the seller of the card and the provider of those goods and
services or the discount or card is offered to members of the
seller;
(B) the seller does not represent that the card
provides insurance coverage of any kind; and
(C) the discount is not false, misleading, or
deceptive;
(19) using or employing a chain referral sales plan in
connection with the sale or offer to sell of goods, merchandise, or
anything of value, which uses the sales technique, plan,
arrangement, or agreement in which the buyer or prospective buyer
is offered the opportunity to purchase merchandise or goods and in
connection with the purchase receives the seller's promise or
representation that the buyer shall have the right to receive
compensation or consideration in any form for furnishing to the
seller the names of other prospective buyers if receipt of the
compensation or consideration is contingent upon the occurrence of
an event subsequent to the time the buyer purchases the merchandise
or goods;
(20) representing that a guarantee or warranty confers
or involves rights or remedies which it does not have or involve,
provided, however, that nothing in this subchapter shall be
construed to expand the implied warranty of merchantability as
defined in Sections 2.314 through 2.318 and Sections 2A.212 through
2A.216 to involve obligations in excess of those which are
appropriate to the goods;
(21) promoting a pyramid promotional scheme, as
defined by Section 17.461;
(22) representing that work or services have been
performed on, or parts replaced in, goods when the work or services
were not performed or the parts replaced;
(23) filing suit founded upon a written contractual
obligation of and signed by the defendant to pay money arising out
of or based on a consumer transaction for goods, services, loans, or
extensions of credit intended primarily for personal, family,
household, or agricultural use in any county other than in the
county in which the defendant resides at the time of the
commencement of the action or in the county in which the defendant
in fact signed the contract; provided, however, that a violation of
this subsection shall not occur where it is shown by the person
filing such suit he neither knew or had reason to know that the
county in which such suit was filed was neither the county in which
the defendant resides at the commencement of the suit nor the county
in which the defendant in fact signed the contract;
(24) failing to disclose information concerning goods
or services which was known at the time of the transaction if such
failure to disclose such information was intended to induce the
consumer into a transaction into which the consumer would not have
entered had the information been disclosed;
(25) using the term "corporation," "incorporated," or
an abbreviation of either of those terms in the name of a business
entity that is not incorporated under the laws of this state or
another jurisdiction;
(26) selling, offering to sell, or illegally promoting
an annuity contract under Chapter 22, Acts of the 57th Legislature,
3rd Called Session, 1962 (Article 6228a-5, Vernon's Texas Civil
Statutes), with the intent that the annuity contract will be the
subject of a salary reduction agreement, as defined by that Act, if
the annuity contract is not an eligible qualified investment under
that Act or is not registered with the Teacher Retirement System of
Texas as required by Section 8A of that Act; [or]
(27) taking advantage of a disaster declared by the
governor under Chapter 418, Government Code, by:
(A) selling or leasing fuel, food, medicine, or
another necessity at an exorbitant or excessive price; or
(B) demanding an exorbitant or excessive price in
connection with the sale or lease of fuel, food, medicine, or
another necessity; or
(28) an act of a health care provider resulting in a
preventable adverse event, as described by Section 17.463.
SECTION 2. Subchapter E, Chapter 17, Business & Commerce
Code, is amended by adding Section 17.463 to read as follows:
Sec. 17.463. PREVENTABLE ADVERSE HEALTH CARE EVENT. (a) In
this section:
(1) "Health care provider" means a person or facility
licensed, certified, or otherwise authorized by the laws of this
state to administer health care, for profit or otherwise, in the
ordinary course of business or professional practice.
(2) "Serious disability" means:
(A) a physical or mental impairment that
substantially limits one or more major life activities of an
individual such as seeing, hearing, speaking, walking, or
breathing, or a loss of a bodily function, if the impairment or loss
lasts more than seven days or is still present at the time of
discharge from an inpatient health care facility; or
(B) loss of a body part.
(3) "Serious injury" means a bodily injury that
results in:
(A) death;
(B) permanent and serious impairment of an
important bodily function; or
(C) permanent and significant disfigurement.
(b) For purposes of this section, a preventable adverse
health care event is any of the following events that occur during
the provision of a health care service by a health care provider to
a patient:
(1) surgery performed on the wrong body part that is
not consistent with the documented informed consent for that
patient, excluding a situation requiring prompt action that occurs
in the course of surgery or an urgent situation that precludes
obtaining informed consent;
(2) surgery performed on the wrong patient;
(3) the wrong surgical procedure performed on the
patient that is not consistent with the documented informed consent
for that patient, excluding a situation requiring prompt action
that occurs in the course of surgery or an urgent situation that
precludes obtaining informed consent;
(4) the unintended retention of a foreign object in
the patient after surgery or another procedure;
(5) death during or immediately after surgery if the
patient would be classified as a normal, healthy patient under
guidelines published by a national association of
anesthesiologists;
(6) death or serious disability caused by the use of a
contaminated drug, device, or biologic provided by a health care
provider if the contamination is the result of a generally
detectable contaminant in drugs, devices, or biologics, regardless
of the source of the contamination or product;
(7) an infant being discharged from a health care
facility to the wrong person;
(8) death or serious disability associated with the
patient's disappearance from a health care facility for more than
four hours, excluding the death or serious disability of an adult
patient who has decision-making capacity;
(9) abduction of the patient from a health care
facility;
(10) sexual assault of the patient within or on the
grounds of a health care facility; and
(11) death or serious injury resulting from a physical
assault of the patient that occurs within or on the grounds of a
health care facility.
(c) Notwithstanding any other law, an action which alleges a
claim to relief under Section 17.50 of this subchapter in relation
to a preventable adverse event is not a health care liability claim
subject to Chapter 74, Civil Practice and Remedies Code. In an
action described by this subsection, the consumer bringing the
claim for relief is not required to demonstrate that the consumer
relied on the preventable adverse event to the consumer's
detriment.
SECTION 3. The change in law made by this Act applies only
to a cause of action that accrues on or after the effective date of
this Act. A cause of action that accrues before the effective date
of this Act is governed by the law in effect immediately before that
date, and that law is continued in effect for that purpose.
SECTION 4. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.