You have a right to die, but the choice may not be yours or your family.

May 21, 2013 | Uncategorized

Texas Senate Bill 303 – allows hospitals to impose “do not attempt resuscitation” (DNAR) orders against patients without their consent and even without their knowledge, passed the Texas Senate today despite opposition by the Association of American Physicians & Surgeons (AAPS) and by virtually every other leading pro-patient group.

Our Senator Glenn Hegar opposed this Bill. Here is a summary of what the bill does:

1. Allows hospitals to issue a “Do not attempt Resuscitation” (DNAR) and other power to impose denial-of-care directives, against patients without their consent and without even giving them written notice.
A. This would put the burden on the patient or family member to find out if the hospital plans to deny care.
B. The bill further makes a verbal objection by the patient or family member insufficient or not effective. This requires the patient or family member to file a written objection, and even then a hospital death panel can overrule the patient and/or families wishes and reject the objection refusing to abide by their wishes regarding their own family member.

2. Grants hospitals the power to withhold medical records from patients for five (5) days as time-sensitive life-or-death decisions are being made. This will create a situation whereby when you or your family need the information the most to make an informed decision, the hospital can refuse to provide you your own records.

3. Grants hospitals the right to deny the ability of independent patient advocates to speak on behalf of a patient and defend the patient’s interests, and instead limit patients to hospital-chosen patient advocates. The same hospital which denies you your records and issues a DNAR order over your objections gets to select who is going to speak on your behalf. Does anyone else see a problem with that?

4. Grants hospitals the power to create their own death panels, stacked with their own employees, to make “ethics” decisions to deny care to patients. Ok, they will probably call them something like medical ethical advisory panels or something similar, but again it is the same hospital which has the power to do 1-3.

5. Grants hospitals the power to transform physicians from being advocates of patient care into becoming adversaries of patients in implementing denial-of-care decisions based on hospital policies.

6. Limit patient options to a request for transfer of the patient to another hospital, at the patient’s own expense and without any guarantee that the other hospital would not also use this law against the patient. This ignores that tax-exempt hospitals have a duty to act in the best interests of patients rather than the self-enrichment of multi-million-dollar compensated hospital administrators. Also you have the issue of not being able to get the necessary medical records.

7. Grants hospitals complete immunity from legal accountability for denying care under most circumstances. You wouldn’t want to have the hospital having to answer to their actions in violating a patients or families rights and wishes regarding their care.

The bill does not establish a right to a second independent opinion; the second opinion which is discussed under this bill will typically be to another hospital employee controlled by hospital policy.

The end result of this bill would be to create death panels which would determine whether you or a family member lives or dies and prevents you from having access to the very medical records which would provide you information to make an informed decision. This bill is all about the profit over people.

Senator Hegar made the following response when asked why he voted against SB 303:
“This bill leaves potential for the burden to be placed on grieving families due to the subjectivity of the physicians.”

What are your thoughts about this bill?

New Texas Supreme Court Rules – Put into an order I like

Feb 27, 2013 | Uncategorized

New Rules from Texas Supreme Court

            As of March 1^st we will have a few new rules impacting civil cases in Texas, but in an on-going practice the Supreme Court has decided to make the rules and decisions retroactive by adding the language under paragraph #3:

            “Rule of Civil Procedure 91a and Rule of Evidence 902(10)(c) apply to all cases, including those pending on March 1, 2013.”  (emphasis added). 

            Rule 169 and amendments to TRCP 47 and 190 apply to cases filed on or after March 1, 2013.

            What are these rules and what do they mean for those of us who actually try cases.

            We need to understand the rules to get a good handle on what they mean to our cases currently filed and those to be filed on or after March 1^st.   First up: Rule 91a.  Skip over the fact that we have had rules to handle baseless causes of action for about as long as Texas has been around, let’s see what it does (I have summarized what I believe are the key parts):

Rule 91a Dismissal of Baseless Causes of Action

91a.1               A party may move to dismiss a cause of action on the grounds that it has no basis in law or fact.

                        A cause of action has no basis in law if the allegations, taken as true, together with the inferences reasonably drawn from them, do not entitle the claimant to the relief sought.

                        A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.

91a.2               The motion must state:        

1. That it is made pursuant to this rule;
2. Must identify each cause of action to which it is addressed; and
3. Must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.

91a.3   The motion must be filed:

1. Within 60 days after the first pleading with the challenged cause of action was served on movant;
2. Filed at least 21 days before the motion is heard; and
3. Granted or denied within 45 days after the Motion is filed. 

91a.4               Response to Motion must be filed no later than 7 days before hearing.

91a.5               If the Movant files a withdrawal of the motion or the respondent files a nonsuit of the challenged cause of action – The court may not rule on the motion to dismiss.

                        If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant before the hearing date may file a withdrawal of the motion or an amended motion directed to the amended cause of action.

                        Except by agreement of the parties the Court must rule on a motion unless it has been withdrawn or nonsuited.

                        Any amended motion restarts the time periods.

91a.6               Hearing:

                        Each party is entitled to at least 14 days’ notice of hearing;

                        The court may (not required) to have oral hearing;

                        Court may not consider evidence in ruling on motion and must decide motion based solely on the pleadings.

91a.7               Attorney Fees and Cost of Court – Required

                        The Court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees.  The Court must consider evidence regarding cost and fees in determining award (only evidence allowed). 

91a.8               No impact on Special Appearance or Motion to Transfer Venue

91a.9               Rule is in addition to other procedures that authorize dismissal.

So if you file a Motion under rule 91a someone is going to be paying attorney fees and costs.   I find it hard to believe that someone would file a pleading that would meet the requirements to dismiss a claim under this section.

Rule 47 Amended:

            Now any pleading claiming damages must include (everything as before) and the following:

            A statement that the party seeks:

1. Only monetary relief of $100,000.00 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; or
2. Only monetary relief of $100,000.00 or less, and non-monetary relief, or
3. Monetary relief over $100,000.00 but not more than $200,000.00; or
4. Monetary relief over $200,000.00 but not more than $1,000,000.00; or
5. Monetary relief over $1,000,000.00

A party that fails to plead one of the above amounts may not conduct discovery until such is amended to comply.

Rule 169 Expedited Actions:

            Apply to all claimants (not counter-claimants) that only monetary relief of $100,000.00 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees.

            Does not apply to Family Code, Property Code, Tax Code or Chapter 74 actions.

            If you fall under this section you may not recover more than $100k, other than post-judgment interest.

Removal the Court from Expedited Process:

            The Court must remove case from process:

1. On motion and showing good cause by any party; or
2. If any claimant seeks any non-monetary relief

A pleading (amended, supplemental) that would remove the suit from the expedited process may not be filed without leave of the Court unless it is filed before the earlier of 30 days after discovery period is closed or 30 days before the date set for trial.

If suit is removed from the expedited process the court must reopen discovery under Rule 190.2(c).

Expedited Actions Process

            Discovery – Rule 190.2

1. Discovery period begins from date suit is filed until 180 days after first request for discovery is served on any party.
2. Depositions – No more than 6 hours for examination and cross in oral depositions.  Parties may agree to expand limit to 10 hours. Court may modify deposition hours.
3. Interrogatories – No more than 15 served on any party, other than asking to identify or authenticate specific documents.
4. Request for Production – No more than 15 served on any party.
5. Request for Admissions– No more than 15 served on any party.
6. Request for Disclosure– In addition to those under 194.2 a party may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support it claims or defenses.

(If a case is removed from the expedited process, the discovery period reopens and discovery must be completed under 190.3 or 190.4 whichever applies.  Any person previously deposed may be redeposed.)

Trial Setting: 

            The Court must set the case for a trial date that is within 90 days after the discovery period ends.  The Court may continue the case twice, but not to exceed a total of 60 days.

Time limits for Trial:

            Each side is allowed no more than 8 hours from jury selection through closing.  On motion and showing of good cause the court may extend it to a maximum of 12 hours per side.  (Time spend on objections, bench conferences, bills of exception and challenges for cause to a juror are not included in the time limit.)

ADR:

            The court may refer the case to ADR once (unless the parties have agreed not to) the procedure must:

1. a.      Not exceed a half day;
2. b.      Not exceed a total costs of 2x applicable filing fees;
3. c.       Be completed no later than 60 days before trial setting.

Expert Testimony:

            A party may only challenge the admissibility of expert testimony as an objection to summary judgment evidence under Rule166a or during the trial on the merits.  Does not apply to motion to strike for late designation.

Medical Records Affidavit are now under TRE 902(10)(c) which is the approved form for a prima facie proof of medical expenses by affidavit post Haygood v. Escobeda.