Support predictability in medical damages calculations
Three action items for this bill.
1. Now through Wednesday: Please file a brief statement in support of HB 4806 on the House public comment portal https://comments.house.texas.gov/home?c=c330. This portal is open now and will close when the bill is heard on Wednesday.
2. VERY IMPORTANT: Wednesday morning beginning at 7am, please attend the hearing or send a representative to sign a witness card FOR HB 4806 (SB 30). Witness cards are only available until the bill is heard. After the bill closes, cards cannot be signed. The House goes in at 10:00 that morning, so try to get your cards signed no later than 9:30 if possible. After the House adjourns for the day, the committee hearing will reconvene for invited testimony only. If you are unable to attend or send someone to the hearing, please file a brief statement in support of HB 4806 on the House public comment portal https://comments.house.texas.gov/home?c=c330.
3. Soon: Write to your legislators through the LSEA portal: Lone Star Economic Alliance https://www.lseatx.com/take-action/#/home
House Judiciary & Civil Jurisprudence
7:00am, Wednesday, May 7, 2025
E2.030
Hearing Notice
Video Link
Public testimony only will be heard from 7:00 AM until the Committee stands in recess for the House floor session and will be limited to two (2) minutes per witness.
Invited testimony only will be heard after the Committee reconvenes following the House floor session.
SB 30 by Schwertner (R-Georgetown)/HB 4806 by Bonnen (R-Friendswood): Makes numerous changes to medical and noneconomic damages. Changes made by the engrossed version of the bill are highlighted in red as follows (old language is stricken):
- Amends § 18.001, CPRC, to eliminate the controverting affidavit and provide instead for a notice of intent to controvert the reasonableness and necessity of health care services;
- Provides that if notice is provided, the plaintiff’s affidavit has no effect except as proof of the authenticity of the health care records;
- Applies the existing timelines to a notice to controvert;
- Adds § 18.0011 to prohibit a party from controverting the reasonableness of medical charges if the affidavit states one of the following amounts: (1) the amounts received from all sources to the facility or provider to pay for the services; or (2) an amount not exceeding 300% of the Medicare fee schedule for the service 150% the median amount paid by nongovernmental third-party payors for the same type of service during the same month as drawn from the Texas All Payor Claims Database for the same geozip;
- Provides that if a health care facility or provider states in the affidavit an intention not to testify, a party may not obtain discovery on reasonableness and necessity and the court must exclude trial testimony of the facility or provider unless: (1) after the affidavit is served, the facility or provider states an intention to testify or appears at trial; (2) the court finds there is good cause to allow the testimony; (3) the testimony will not unfairly surprise or prejudice a party; and (4) the party opposing admission is given a reasonable opportunity to conduct discovery;
- Prohibits an affidavit from being used in another action;
- Amends § 41.001 to refine the definitions of “future damages” (must be “reasonably probable”) and “future loss of earnings” (reasonable probability);
- Defines “mental or emotional pain or anguish” to mean “grievous and debilitating angst, distress, torment, or emotional suffering or turmoil that causes a substantial disruption of the claimant’s daily life routine and includes loss of consortium, loss of companionship and society, loss of enjoyment of life, disfigurement, and physical impairment or a similar mental or emotional injury”;
- Excludes economic or exemplary damages from the definition of “noneconomic damages”;
- Defines “physical pain and suffering” to mean “a painful or distressing sensation associated with an injury or damage to a part of the body that: (1) is consciously felt, (2) significant in magnitude, and (2) either (3) arises from an observable injury, disfigurement, or impairment or is shown to exist through objectively verifiable medical evaluation or testing” or, in cases of sexual assault or abuse, is corroborated by medical evidence or a prior consistent statement;
- Adds Subchapter C, Chapter 41, CPRC, to govern recovery of health care expenses as economic damages in a personal injury or wrongful death action;
- Defines “health care expenses,” “health care services” (including rehabilitative and personal care services), “injured individual,” “letter of protection,” “physician,” “provider,” and “third-party payor”;
- Limits admissible evidence for economic damages for health care expenses to the sum of: (1) amounts paid by third-party payors to providers; (2) amounts paid by the injured individual or on the individual’s behalf by non-third-party payors without a formal or informal agreement for the provider to refund, rebate, or remit money to the payor, injured individual, claimant, or claimant’s attorney or anyone associated therewith; and (3) if (1) and (2) do not apply, an amount not to exceed 300% of the Medicare fee schedule for the service, as the schedule existed on May, 2025, increased or decreased by the CPI between May 1, 2025 and the date of the services 150% of the median amount paid by nongovernmental third-party payors to providers for the same type of services during the same month in which the services were provided;
- Limits evidence that may be offered for future damages consisting of health care expenses to the reasonable value of necessary services not to exceed 300% of the Medicare fee schedule applicable to each service as of the date trial commenced, as the schedule existed on May, 2025, increased or decreased by the CPI between May 1, 2025 and the date of the services with reference to the Texas All Claims Database for the month preceding the date trial commences;
- Requires provider statements or invoices to comply with the clean claim requirements of Chapter 1301, Insurance Code (no award if the service does not have an industry-recognized billing code);
- Provides that the failure of a claimant to use available health benefit coverage shall be considered a failure to mitigate damages;
- Requires the claimant to disclose to each other party provider statements or invoices, any letter of protection, and any written agreement under which a provider may refund, rebate, or remit money to a payor, injured individual, claimant, claimant’s attorney, or a person associated therewith;
- Requires the claimant to identify any provider who provided health care services in relation to the injury caused in the event giving rise to the action and authorize other parties to obtain from each provider the injured individual’s medical records, any third-party payor that may have had a legal or contractual obligation to pay for health care services to the individual, any unwritten agreement to refund any money to the above persons, and, if the claimant was referred to a provider, the name and contact information of each person who made the referral and that person’s relation to the injured individual;
- Requires disclosure, if the referring person is the claimant’s attorney, of an anonymized list of referrals to that provider in the preceding two years, each person anonymously described on whose behalf a payment was made, and other aspects of any financial relationship between the attorney and the provider (includes a referral made by the injured party’s attorney even if made by another person when the attorney knows or had reason to know that the referral would be made);
- Provides that nothing in the statute affects the claimant’s obligation to prove that health care services were necessary and causally connected to defendant’s acts or omissions;
- Makes admissible into evidence the above information and all of the injured individual’s health care expenses, evidence of health benefit plan coverage treatment guidelines and formularies approved by the Worker’s Compensation Division relating to the necessity of services, and letters or protection and other financial relations between the claimant’s attorney and providers;
- Requires an award of physical pain and suffering or mental or emotional pain and anguish damages to fairly and reasonably compensate the claimant for the injury for the period of time the pain, suffering, or anguish has persisted or reasonably can be expected to persist in the future, be based on evidence of nature, duration and severity and reflect a rational connection, grounded in evidence, between the injury suffered and dollar amount necessary to provide fair and reasonable compensation;
- Prohibits an award from being used to punish or penalize a defendant, make an example to others, or serve a social good;
- Requires the award to exclude amounts properly considered economic losses, such as lost earnings caused by physical impairment or medical expenses for emotional or psychological care;
- Prohibits jury-anchoring and makes it reversible error;
- Requires a court to give statutorily prescribed jury instructions;
- Requires the trial court to state the legal and factual support for an award of noneconomic damages if a defendant requests remittur and the award exceeds: (1) $1 million for past and future mental or emotional pain or anguish in a wrongful death action; (2) for past and future damages for physical pain and suffering, the lesser of three times the award for past and future health care expenses or $100,000 per year for each year of the claimant’s life expectancy; $1 million for past and future mental or emotional pain or anguish in an action arising from an event primarily causing emotional injury to the claimant; or (4) $250,000 for past and future emotional pain or anguish in an action arising from an event primarily causing bodily injury;
- Amends § 304.102, Finance Code, to limit prejudgment interest to awards for economic losses, calculated from the date the health care expenses were actually paid, or other economic losses were actually suffered by the claimant.
Passed Senate on 4/16. Set for hearing in House JCJ on 5/7 at 7:00am.
