Chairman Charles Schwertner
Chairman Greg Bonnen
Legislation aimed at reigning in medical and noneconomic damages has been filed. Senator Charles Schwertner (R-Georgetown) and Rep. Greg Bonnen (R-Friendswood) introduced SB 30 and HB 4806 on Thursday. The following is a summary of the legislation’s key provisions. We have also attached a copy of the filed version for those of you who would like a deeper dive into the details.
SB 30 by Schwertner (R-Georgetown)/HB 4806 by Bonnen (R-Friendswood): Makes numerous changes to medical and noneconomic damages, as follows:
- 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 as to each health care service: (1) the amounts received from all sources to the facility or provider to pay for the services; or (2) an amount not exceeding 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 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, except for good cause, the testimony will not unfairly surprise or prejudice a party, and the party opposing admission is given a reasonable opportunity to conduct discovery;
- Prohibits an affidavit from being used in another actions;
- 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 emotion suffering that causes a substantial disruption of the claimant’s daily routine and arises from loss of consortium, loss of companionship and society, loss of enjoyment of life, 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 to a part of the body that is consciously felt, significant in magnitude, and arises from an observable injury or impairment or is shown to exist through objectively verifiable medical evaluation or testing”;
- Adds Subchapter C, Chapter 41, CPRC, to govern recovery of health care expenses as econoic damages in a personal injury or wrongful death action;
- Caps 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, 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 future damages for health care expenses to the reasonable value of necessary 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, 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 all providers 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, anty 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 referrals to that provider in the preceding year, each person on whose behalf a payment was made, and other aspects of any financial relationship between the attorney and the provider;
- Makes admissible into evidence 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 noneconomic damages to 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 ormedical 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 thelegal 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.
