OLR Research Report

October 15, 2003





By: Kevin E. McCarthy, Principal Analyst

You asked for a summary of medical malpractice legislation recently adopted in Texas (HB 4), particularly with regard to the provisions capping liability for damages.


HB 4 substantially amends Texas’ law regarding medical liability. It establishes a cap of $ 250,000 per claimant on non-economic damage awards in cases involving health care providers or an individual health. The limit applies regardless of the number of providers involved or the number of issues upon which the claim is based. If the claim involves several institutions, the cap is $ 500,000 per claimant. The mandated insurance coverage will increase in 2005 and 2007. The act caps awards against providers in wrongful death suits at $ 500,000 per claim. The award is adjusted annually for inflation and it does not apply to medical, hospital, or custodial costs.

These provisions supersede a $ 500,000 cap for providers and institutions imposed under prior law that was the state courts had found unconstitutional. The cap applied to all damages except medical, hospital, and custodial costs. The new caps were adopted in conjunction with a constitutional amendment that authorizes them.

The legislation also broadens the circumstances under which a provider is immune from liability in providing emergency care. It immunizes public sector health providers under certain circumstances. It makes many other changes in the laws governing liability for providers and institutions.

HB 4 also significantly amends the laws governing liability generally and has specific provisions for design professionals, volunteer fire services, and public employees.


In 1977, Texas adopted the Medical Liability and Insurance Improvement Act (Tex. Civ. Stat. Art. 4590i). Among other things, this act established a $ 500,000 cap on the liability of a physician, other health care provider, or hospital. The limit did not apply to necessary past or future medical, hospital, or custodial costs. It also provided that if this provision was invalidated, there would be an alternative cap of $ 150,000 on past and future non-economic damages. These include things such as pain and suffering, mental anguish, and disfigurement.

The state courts subsequently found these provisions violated the state constitution. As a result, the legislature passed legislation in conjunction with HB 4 that authorized a referendum on a constitutional amendment that would allow the legislature to adopt caps on non-economic damages. The voters approved the referendum on September 13, 2003.


Non-economic Damages

HB 4 caps non-economic damages at $ 250,000 per claimant in a case involving a provider, regardless of the number of providers involved or the number of separate legal theories on which the claim is based. Providers include, among others, physicians, nurses, dentists, and pharmacists. Institutions include hospitals, ambulatory surgical centers, and emergency medical services providers. It also imposes this limit for a claim against a single health care institution, including all persons that may be subject to vicarious liability. For claims involving more than one institution, the $ 250,000 limit applies to any one institution, and each claimant is limited to $ 500,000 in total non-economic damages.

Charity and Non-compensated Care

The legislation caps at $ 500,000 the liability of a hospital and its officers and employees under certain circumstances. The cap applies in a suit for acts or omissions that result in the injury or death of a patient if the patient or his guardian signs a form that acknowledges:

The cap applies to economic as well as non-economic damages. And it applies even if: (1) the patient is sick or injured and cannot sign the form or (2) the patient is a child or legally incompetent and the person responsible for him is reasonably available to sing the form (it is not clear how these provisions will be read together).

For non-profit hospitals that provide specific levels of charity care, as certified by the Department of Health, the caps on total damages are $ 100,000 for each person and $ 300,000 for each single occurrence of injury or death.

Wrongful Death Suits

HB 4 caps awards against providers in wrongful death suits to $ 500,000 per claimant. The cap includes exemplary (punitive) damages, and applies regardless of the number of providers or institutions involved or the number of causes of action. The cap must be adjusted annually to reflect changes in inflation as measured by the consumer price index. The cap does not apply to past or future necessary medical, hospital, or custodial costs. But it does apply to other economic damages as well as to all non-economic damages.

Punitive Damages

The act caps punitive damages in cases in which a child or elderly or disabled person was knowingly, intentionally, or recklessly injured by omission in the course of health care. The cap is the greater of:


HB 4 also broadens the circumstances under which a provider is immune from liability for providing emergency medical care under the state’s Good Samaritan law. Previously, the immunity did not apply to:

The legislation eliminates the last two restrictions. It specifies that the fact a provider was legally entitled to charge for the service does not determine that he was working for remuneration.

The act immunizes public sector health care providers for damage awards above $ 100,000 in cases that resulted in injury or death if the provider was:


In addition to the above provisions, the act:

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