Texas 2009 - 81st Regular

Texas House Bill HB3101 Compare Versions

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

Old	New	Differences
1	1	81R10749 YDB-F
2	2	By: Leibowitz H.B. No. 3101
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the deceptive trade practice of charging for certain
8	8	preventable adverse health care events.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 17.46(b), Business & Commerce Code, is
11	11	amended to read as follows:
12	12	(b) Except as provided in Subsection (d) of this section,
13	13	the term "false, misleading, or deceptive acts or practices"
14	14	includes, but is not limited to, the following acts:
15	15	(1) passing off goods or services as those of another;
16	16	(2) causing confusion or misunderstanding as to the
17	17	source, sponsorship, approval, or certification of goods or
18	18	services;
19	19	(3) causing confusion or misunderstanding as to
20	20	affiliation, connection, or association with, or certification by,
21	21	another;
22	22	(4) using deceptive representations or designations
23	23	of geographic origin in connection with goods or services;
24	24	(5) representing that goods or services have
25	25	sponsorship, approval, characteristics, ingredients, uses,
26	26	benefits, or quantities which they do not have or that a person has
27	27	a sponsorship, approval, status, affiliation, or connection which
28	28	he does not;
29	29	(6) representing that goods are original or new if
30	30	they are deteriorated, reconditioned, reclaimed, used, or
31	31	secondhand;
32	32	(7) representing that goods or services are of a
33	33	particular standard, quality, or grade, or that goods are of a
34	34	particular style or model, if they are of another;
35	35	(8) disparaging the goods, services, or business of
36	36	another by false or misleading representation of facts;
37	37	(9) advertising goods or services with intent not to
38	38	sell them as advertised;
39	39	(10) advertising goods or services with intent not to
40	40	supply a reasonable expectable public demand, unless the
41	41	advertisements disclosed a limitation of quantity;
42	42	(11) making false or misleading statements of fact
43	43	concerning the reasons for, existence of, or amount of price
44	44	reductions;
45	45	(12) representing that an agreement confers or
46	46	involves rights, remedies, or obligations which it does not have or
47	47	involve, or which are prohibited by law;
48	48	(13) knowingly making false or misleading statements
49	49	of fact concerning the need for parts, replacement, or repair
50	50	service;
51	51	(14) misrepresenting the authority of a salesman,
52	52	representative or agent to negotiate the final terms of a consumer
53	53	transaction;
54	54	(15) basing a charge for the repair of any item in
55	55	whole or in part on a guaranty or warranty instead of on the value of
56	56	the actual repairs made or work to be performed on the item without
57	57	stating separately the charges for the work and the charge for the
58	58	warranty or guaranty, if any;
59	59	(16) disconnecting, turning back, or resetting the
60	60	odometer of any motor vehicle so as to reduce the number of miles
61	61	indicated on the odometer gauge;
62	62	(17) advertising of any sale by fraudulently
63	63	representing that a person is going out of business;
64	64	(18) advertising, selling, or distributing a card
65	65	which purports to be a prescription drug identification card issued
66	66	under Section 4151.152, Insurance Code, in accordance with rules
67	67	adopted by the commissioner of insurance, which offers a discount
68	68	on the purchase of health care goods or services from a third party
69	69	provider, and which is not evidence of insurance coverage, unless:
70	70	(A) the discount is authorized under an agreement
71	71	between the seller of the card and the provider of those goods and
72	72	services or the discount or card is offered to members of the
73	73	seller;
74	74	(B) the seller does not represent that the card
75	75	provides insurance coverage of any kind; and
76	76	(C) the discount is not false, misleading, or
77	77	deceptive;
78	78	(19) using or employing a chain referral sales plan in
79	79	connection with the sale or offer to sell of goods, merchandise, or
80	80	anything of value, which uses the sales technique, plan,
81	81	arrangement, or agreement in which the buyer or prospective buyer
82	82	is offered the opportunity to purchase merchandise or goods and in
83	83	connection with the purchase receives the seller's promise or
84	84	representation that the buyer shall have the right to receive
85	85	compensation or consideration in any form for furnishing to the
86	86	seller the names of other prospective buyers if receipt of the
87	87	compensation or consideration is contingent upon the occurrence of
88	88	an event subsequent to the time the buyer purchases the merchandise
89	89	or goods;
90	90	(20) representing that a guarantee or warranty confers
91	91	or involves rights or remedies which it does not have or involve,
92	92	provided, however, that nothing in this subchapter shall be
93	93	construed to expand the implied warranty of merchantability as
94	94	defined in Sections 2.314 through 2.318 and Sections 2A.212 through
95	95	2A.216 to involve obligations in excess of those which are
96	96	appropriate to the goods;
97	97	(21) promoting a pyramid promotional scheme, as
98	98	defined by Section 17.461;
99	99	(22) representing that work or services have been
100	100	performed on, or parts replaced in, goods when the work or services
101	101	were not performed or the parts replaced;
102	102	(23) filing suit founded upon a written contractual
103	103	obligation of and signed by the defendant to pay money arising out
104	104	of or based on a consumer transaction for goods, services, loans, or
105	105	extensions of credit intended primarily for personal, family,
106	106	household, or agricultural use in any county other than in the
107	107	county in which the defendant resides at the time of the
108	108	commencement of the action or in the county in which the defendant
109	109	in fact signed the contract; provided, however, that a violation of
110	110	this subsection shall not occur where it is shown by the person
111	111	filing such suit he neither knew or had reason to know that the
112	112	county in which such suit was filed was neither the county in which
113	113	the defendant resides at the commencement of the suit nor the county
114	114	in which the defendant in fact signed the contract;
115	115	(24) failing to disclose information concerning goods
116	116	or services which was known at the time of the transaction if such
117	117	failure to disclose such information was intended to induce the
118	118	consumer into a transaction into which the consumer would not have
119	119	entered had the information been disclosed;
120	120	(25) using the term "corporation," "incorporated," or
121	121	an abbreviation of either of those terms in the name of a business
122	122	entity that is not incorporated under the laws of this state or
123	123	another jurisdiction;
124	124	(26) selling, offering to sell, or illegally promoting
125	125	an annuity contract under Chapter 22, Acts of the 57th Legislature,
126	126	3rd Called Session, 1962 (Article 6228a-5, Vernon's Texas Civil
127	127	Statutes), with the intent that the annuity contract will be the
128	128	subject of a salary reduction agreement, as defined by that Act, if
129	129	the annuity contract is not an eligible qualified investment under
130	130	that Act or is not registered with the Teacher Retirement System of
131	131	Texas as required by Section 8A of that Act; [or]
132	132	(27) taking advantage of a disaster declared by the
133	133	governor under Chapter 418, Government Code, by:
134	134	(A) selling or leasing fuel, food, medicine, or
135	135	another necessity at an exorbitant or excessive price; or
136	136	(B) demanding an exorbitant or excessive price in
137	137	connection with the sale or lease of fuel, food, medicine, or
138	138	another necessity; or
139	139	(28) an act of a health care provider resulting in a
140	140	preventable adverse event, as described by Section 17.463.
141	141	SECTION 2. Subchapter E, Chapter 17, Business & Commerce
142	142	Code, is amended by adding Section 17.463 to read as follows:
143	143	Sec. 17.463. PREVENTABLE ADVERSE HEALTH CARE EVENT. (a) In
144	144	this section:
145	145	(1) "Health care provider" means a person or facility
146	146	licensed, certified, or otherwise authorized by the laws of this
147	147	state to administer health care, for profit or otherwise, in the
148	148	ordinary course of business or professional practice.
149	149	(2) "Serious disability" means:
150	150	(A) a physical or mental impairment that
151	151	substantially limits one or more major life activities of an
152	152	individual such as seeing, hearing, speaking, walking, or
153	153	breathing, or a loss of a bodily function, if the impairment or loss
154	154	lasts more than seven days or is still present at the time of
155	155	discharge from an inpatient health care facility; or
156	156	(B) loss of a body part.
157	157	(3) "Serious injury" means a bodily injury that
158	158	results in:
159	159	(A) death;
160	160	(B) permanent and serious impairment of an
161	161	important bodily function; or
162	162	(C) permanent and significant disfigurement.
163	163	(b) For purposes of this section, a preventable adverse
164	164	health care event is any of the following events that occur during
165	165	the provision of a health care service by a health care provider to
166	166	a patient:
167	167	(1) surgery performed on the wrong body part that is
168	168	not consistent with the documented informed consent for that
169	169	patient, excluding a situation requiring prompt action that occurs
170	170	in the course of surgery or an urgent situation that precludes
171	171	obtaining informed consent;
172	172	(2) surgery performed on the wrong patient;
173	173	(3) the wrong surgical procedure performed on the
174	174	patient that is not consistent with the documented informed consent
175	175	for that patient, excluding a situation requiring prompt action
176	176	that occurs in the course of surgery or an urgent situation that
177	177	precludes obtaining informed consent;
178	178	(4) the unintended retention of a foreign object in
179	179	the patient after surgery or another procedure;
180	180	(5) death during or immediately after surgery if the
181	181	patient would be classified as a normal, healthy patient under
182	182	guidelines published by a national association of
183	183	anesthesiologists;
184	184	(6) death or serious disability caused by the use of a
185	185	contaminated drug, device, or biologic provided by a health care
186	186	provider if the contamination is the result of a generally
187	187	detectable contaminant in drugs, devices, or biologics, regardless
188	188	of the source of the contamination or product;
189	189	(7) an infant being discharged from a health care
190	190	facility to the wrong person;
191	191	(8) death or serious disability associated with the
192	192	patient's disappearance from a health care facility for more than
193	193	four hours, excluding the death or serious disability of an adult
194	194	patient who has decision-making capacity;
195	195	(9) abduction of the patient from a health care
196	196	facility;
197	197	(10) sexual assault of the patient within or on the
198	198	grounds of a health care facility; and
199	199	(11) death or serious injury resulting from a physical
200	200	assault of the patient that occurs within or on the grounds of a
201	201	health care facility.
202	202	(c) Notwithstanding any other law, an action which alleges a
203	203	claim to relief under Section 17.50 of this subchapter in relation
204	204	to a preventable adverse event is not a health care liability claim
205	205	subject to Chapter 74, Civil Practice and Remedies Code. In an
206	206	action described by this subsection, the consumer bringing the
207	207	claim for relief is not required to demonstrate that the consumer
208	208	relied on the preventable adverse event to the consumer's
209	209	detriment.
210	210	SECTION 3. The change in law made by this Act applies only
211	211	to a cause of action that accrues on or after the effective date of
212	212	this Act. A cause of action that accrues before the effective date
213	213	of this Act is governed by the law in effect immediately before that
214	214	date, and that law is continued in effect for that purpose.
215	215	SECTION 4. This Act takes effect immediately if it receives
216	216	a vote of two-thirds of all the members elected to each house, as
217	217	provided by Section 39, Article III, Texas Constitution. If this
218	218	Act does not receive the vote necessary for immediate effect, this
219	219	Act takes effect September 1, 2009.