THE NEW MEDICAL LIABILITY ACT

BY CHARLES DUNN

On September 1, 2003, Chapter 74 of the Civil Practice and Remedies Code will replace 4590i as

the law that governs suits against health care providers. This article will provide an overview of

the changes £Tom current law along with practice tips for handling the health care liability claim.

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SUBCHAPTER A- GENERAL PROVISIONS

Subchapter A of the act contains the general provisions and definitions that apply in a medical

malpractice case. Sec. 74.002(a) specifically provides that the act shall control if there is a

conflict between the act and existing rules of procedure or evidence. The provisions of the act

cannot be altered by local court rule, Sec. 74.002(c). The act also provides that the Texas

Deceptive Trade Practices Act does not apply to physicians or health care providers but does

apply to pharmacists, Sec. 74.004(a)&(b).

SUBCHAPTER B- NOTICE AND PLEADINGS

Subchapter B changes the notice and pleadings requirements for a health care liability claim. Sec.

74. 051 (a) maintains the requirement under 4590i of a 60 day notice letter which must be sent

certified mail to the physician, health care provider or institution. The new act adds the

requirement that attached to the notice letter must be a medical release signed by the claimant in

the form prescribed by Sec. 74.052. Any pleadings that are subsequently filed must state that the

notice letter and release have been provided to the physician, health care provider or institution

and upon request by the court, the claimant must provide proof that he/she has provided the

notice letter and release, Sec. 74.051(b). As was the law under 4590i, sending the notice tolls the

statute oflimitations for 75 days from the date of giving of the notice, Sec. 74.052(c).

If the claimant sends a notice of health care claim but fails to attach a release in the exact form

prescribed by Sec. 74.052, the claim is abated until 60 days after the physician, health care

provider or institution is provided with the release. Because of the mandatary experts report to be

discussed later in the paper, it is crucial that the claimants attorney provide the necessary release

to the defendants with the notice of claim to avoid a post- filing abatement of the lawsuit.

The release prescribed by statue is attached as an appendix to this paper. The release is intended

to meet the requirements of HIPP A but has significant waivers of patients rights not required in

other