HB4806 - Relating to recovery of damages in civil actions.

  89R16793 SCL-D     By: Bonnen H.B. No. 4806       A BILL TO BE ENTITLED   AN ACT   relating to recovery of damages in civil actions.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 18.001, Civil Practice and Remedies   Code, is amended by amending Subsections (b), (e), (e-1), (h), and   (i) and adding Subsections (b-1) and (b-2) to read as follows:          (b)  Unless notice of intent to controvert the   reasonableness of the amounts charged or the necessity for health   care services [ a controverting affidavit ] is served as provided by   this section, an affidavit complying with this section and stating   that the amount a person charged for a service was reasonable at the   time and place that the service was provided and that the service   was necessary is sufficient evidence to support a finding of fact by   judge or jury that the amount charged was reasonable or that the   service was necessary.           (b-1)     Except as provided by Section 18.0011, if notice of   intent to controvert the reasonableness of the amounts charged or   necessity for health care services is served as provided by this   section, an affidavit served under Subsection (b) has no effect   except the affidavit may prove the authenticity of the health care   records described by the affidavit.           (b-2)  An [ The ] affidavit described by Subsection (b) is not   evidence of and does not support a finding of the causation element   of the cause of action that is the basis for the civil action.          (e)  A party intending to controvert the reasonableness of   the amounts charged or necessity for health care services [ a claim   reflected by the affidavit ] must serve notice of that intent [ a copy   of the counteraffidavit ] on each other party or the party's   attorney of record by the earlier of:                (1)  120 days after the date the defendant files its   answer;                (2)  the date the party serving notice [ offering the   counteraffidavit ] must designate expert witnesses under a court   order; or                (3)  the date the party serving notice [ offering the   counteraffidavit ] must designate any expert witness as required by   the Texas Rules of Civil Procedure.          (e-1)  Notwithstanding Subsection (e), if the party offering   the affidavit [ in evidence ] serves a copy of the affidavit under   Subsection (d-1), notice of intent to controvert the reasonableness   of the amounts charged or necessity for health care services must be   served [ the party offering the counteraffidavit in evidence or the   party's attorney must serve a copy of the counteraffidavit ] on each   other party to the case by the later of:                (1)  30 days after service of the affidavit on the party   serving notice [ offering the counteraffidavit in evidence ];                (2)  the date the party serving notice [ offering the   counteraffidavit ] must designate any expert witness under a court   order; or                (3)  the date the party serving notice [ offering the   counteraffidavit in evidence ] must designate any expert witness as   required by the Texas Rules of Civil Procedure.          (h)  If health care  [ continuing ] services are provided after   a relevant deadline under this section:                (1)  a party may supplement an affidavit served by the   party under Subsection (d) or (d-1) on or before the 60th day before   the date the trial commences; and                (2)  a party that served notice [ a counteraffidavit ]   under Subsection (e) or (e-1) may serve notice related to the   supplemental affidavit [ supplement the counteraffidavit ] on or   before the 30th day before the date the trial commences.          (i)  Notwithstanding Subsections (d), (d-1), (d-2), (e),   (e-1), [ (g), ] and (h), a deadline under this section may be altered   by all parties to an action by agreement or with leave of the court.          SECTION 2.  Subchapter A, Chapter 18, Civil Practice and   Remedies Code, is amended by adding Section 18.0011 to read as   follows:           Sec.   18.0011.     AFFIDAVIT OF HEALTH CARE FACILITY OR   PROVIDER. (a) A party may not controvert the reasonableness of the   charges for health care services stated in an affidavit served   under Section 18.001 if, as to each health care service provided by   the health care facility or provider:                 (1)     the affidavit states one of the following amounts   as the reasonable charge for the service:                       (A)     the amounts received from all sources by the   facility or provider to pay for the service provided to the person   whose injury or death is the subject of the action; or                       (B)     an amount that does not exceed 150 percent of   the median amount paid by nongovernmental third-party payors to   health care facilities or providers for the same type of service   provided to the person whose injury or death is the subject of the   action during the month in which the service was provided, as drawn   from the Texas All Payor Claims Database established under   Subchapter I, Chapter 38, Insurance Code, for the geozip:                             (i)     in which the service was provided, if   the service was provided in this state; or                             (ii)     in which The University of Texas   Health Science Center at Houston is located, if the service was   provided outside of this state; and                 (2)     the affidavit is accompanied by an invoice for the   service that would comply with the clean claim requirements of   Chapter 1301, Insurance Code.           (b)     If an affidavit of a health care facility or provider   served under Section 18.001 complies with Subsection (a) and   includes a statement that the facility or provider does not intend   to appear at trial to testify regarding the reasonableness of the   facility's or provider's charges or the necessity for the facility's   or provider's services, then:                 (1)     a party may not seek to obtain through any pretrial   discovery procedure information from the facility or provider about   the reasonableness of the facility's or provider's charges or the   necessity for the facility's or provider's services; and                 (2)     the trial court shall exclude trial testimony by   the facility or provider regarding the reasonableness of the   facility's or provider's charges or the necessity for the facility's   or provider's services unless:                       (A)     the court finds there is good cause to allow   the testimony;                       (B)     the testimony will not unfairly surprise or   unfairly prejudice any party to the action; and                       (C)     a party opposing admission of the testimony   into evidence is given a reasonable opportunity to conduct   discovery and present evidence relevant to the testimony to be   offered by the facility or provider.           (c)     An affidavit of a health care facility or provider   described by Subsection (a) and the statements made in the   affidavit may be used only in the civil action in which the   affidavit is served and not in other actions or for other purposes.          SECTION 3.  Chapter 41, Civil Practice and Remedies Code, is   amended by designating Sections 41.001, 41.002, 41.008, 41.009,   41.0105, and 41.014 as Subchapter A and adding a subchapter heading   to read as follows:   SUBCHAPTER A. GENERAL PROVISIONS          SECTION 4.  Section 41.001, Civil Practice and Remedies   Code, is amended by amending Subdivisions (9), (10), and (12) and   adding Subdivisions (11-a) and (14) to read as follows:                (9)  "Future damages" means damages that in reasonable   probability can be expected to be [ are ] incurred after the date of   the judgment.   The term does [ Future damages do ] not include   exemplary damages.                (10)  "Future loss of earnings" means a pecuniary loss   from reductions in income, wages, or earning capacity that in   reasonable probability can be expected to be incurred after the   date of the judgment .  The term does not include [ , including:                      [ (A)     loss of income, wages, or earning capacity;   and                      [ (B) ]  loss of inheritance.                 (11-a) "Mental or emotional pain or anguish" means   grievous and debilitating angst, distress, torment, or emotional   suffering or turmoil that:                       (A)     causes a substantial disruption in a person's   daily routine; and                       (B)     arises from loss of consortium, loss of   companionship and society, loss of enjoyment of life, or a similar   mental or emotional injury.                (12)  "Noneconomic damages" means damages awarded for   the purpose of compensating a claimant for nonpecuniary losses for   physical pain and suffering, mental or emotional pain or anguish,   and [ loss of consortium, disfigurement, physical impairment, loss   of companionship and society, inconvenience, loss of enjoyment of   life, ] injury to reputation[ , and all other nonpecuniary losses of   any kind other than exemplary damages ].   The term does not include   economic or exemplary damages.                 (14)     "Physical pain and suffering" means a painful or   distressing sensation associated with an injury or damage to a part   of a person's body that:                       (A)  is consciously felt;                       (B)  is significant in magnitude; and                       (C)     arises from an observable injury or   impairment or is shown to exist through objectively verifiable   medical evaluation or testing.          SECTION 5.  Section 41.002(d), Civil Practice and Remedies   Code, is amended to read as follows:          (d)  Notwithstanding any provision to the contrary, the   provisions of this chapter regarding exemplary damages do [ does ]   not apply to:                (1)  Section 15.21, Business & Commerce Code (Texas   Free Enterprise and Antitrust Act of 1983);                (2)  an action brought under the Deceptive Trade   Practices-Consumer Protection Act (Subchapter E, Chapter 17,   Business & Commerce Code) except as specifically provided in   Section 17.50 of that Act; &#xA [Text truncated for display. 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