SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1.03. Definitions.
(a) In this Act:
(18) "Medical records" means all records pertaining to the history, diagnosis, treatment, or prognosis of a patient.
SUBCHAPTER E. OTHER PROVISIONS
Sec. 5.05. Reports and Data From Insurers.
(a) Every insurer or other entity providing medical professional liability insurance covering a physician or physicians in this state shall submit to the board the report or data described in Subsections (b) and (c) of this section at the time prescribed. The report or data shall be provided with respect to a notice of claim letter or complaint filed against an insured in a court, if the notice of claim letter or complaint seeks damages relating to the insured's conduct in providing or failing to provide medical or health-care services, and with respect to settlement of a claim or lawsuit made on behalf of the insured. In the event a physician practicing medicine in this state does not carry or is not covered by medical professional liability insurance or is insured by a nonadmitted carrier or other entity providing medical liability insurance which is not reporting under this Act, the information required to be reported in Subsections (b) and (c) of this section shall be the responsibility of the physician.
(b) The following report or data shall be furnished to the board within 30 days after receipt by the insurer of the notice of claim letter or complaint from the insured:
(1) the name of the insured and the insured's Texas medical license number;
(2) the policy number; and
(3) a copy of the notice of claim letter or complaint.
(c) The board shall, in consultation with the State Board of Insurance, adopt rules for reporting additional data as the board may require. Other claim reports required under state and federal statutes shall be considered in determining the data to be reported, form of the report, and frequency of reporting under the rules. Additional data which the board may require may include the following:
(1) the date of a judgment, dismissal, or settlement;
(2) whether an appeal has been taken and by which party; and
(3) the amount of the settlement or judgment against the insured.
(d) There shall be no liability on the part of and no cause of action of any nature arises against an insurer reporting under this section, its agents or employees, or the board or its employees or representatives for any action taken by them pursuant to this section.
(e) In the trial of a suit against a physician based on his conduct in providing or failing to provide medical or health-care services, no report or data submitted to the board under this section nor the fact that the report or data has been submitted to the board may be offered in evidence or in any manner used in the trial of the case.
(f) The board shall review the information relating to a physician against whom three or more malpractice claims have been reported within a five-year period as if a complaint against that physician had been made to the board under Section 4.02 of this Act.
(g) The State Board of Insurance may impose on any insurer subject to this Act sanctions authorized by Section 7 of Article 1.10, Insurance Code, if such insurer fails to report such data as prescribed by this section.
Sec. 5.06. Reporting and confidentiality requirements.
(a) The provisions of the Health Care Quality Improvement Act of 1986 (Public Law No. 99-660) apply to a professional review action taken by a professional review body in this state on or after the effective date of this Act.
(b) Each medical peer review committee or health-care entity shall report in writing to the board the results and circumstances of any professional review action that adversely affects the clinical privileges of a physician for a period longer than 30 days, accepts the surrender of clinical privileges of a physician while the physician is under an investigation by the medical peer review committee relating to possible incompetence or improper professional conduct, or in return for not conducting such an investigation or proceeding, or in the case of an entity which is a professional society or association, takes a professional review action which adversely affects the membership of a physician in the society or association. The duty to report under this section shall not be nullified through contract.
(c) A report made under this section is confidential and is not subject to disclosure under the open records law. In any proceeding brought under this subchapter, evidence may not be excluded on the ground of privileged communication except in the case of communications between attorney and client.
(d) Any medical peer review committee in this state, any physician licensed to practice medicine or otherwise lawfully practicing medicine in this state, any physician engaged in graduate medical education or training, or any medical student shall report relevant information to the board relating to the acts of any physician in this state if, in the opinion of the medical peer review committee, physician, or medical student, the physician poses a continuing threat to the public welfare through the practice of medicine. The duty to report under this section shall not be nullified through contract.
(e) Any committee of a professional medical society or association operating under written bylaws approved by the policy-making body or governing board of the society or association, and comprised primarily of physicians, its staff, or any district or local intervenor participating in a program established to aid physicians whose ability to practice medicine is impaired, or reasonably believed to be impaired, by drug or alcohol abuse or mental or physical illness, may report to the board or to the health-care entity in which the physician has clinical privileges the name of the impaired physician together with the pertinent information relating to that impairment and shall report to the board and the health-care entity, if known, in which the physician has clinical privileges if the committee determines that, through the practice of medicine, the physician poses a continuing threat to the public welfare. Except as otherwise provided by this Act, all proceedings and records of such a committee or intervenor are confidential, and all communications made to such a committee are privileged from disclosure in the manner provided under this section for information submitted by a medical peer review committee. The confidentiality and privilege provisions apply to all information developed under this subsection, including information developed before September 1, 1991.
(f) The filing of a report with the board pursuant to this section, investigation by the board, or any disposition by the board does not, in itself, preclude any action by a health-care entity to suspend, restrict, or revoke the privileges or membership of the physician.
(g) Except as otherwise provided by this Act, all proceedings and records of a medical peer review committee are confidential, and all communications made to a medical peer review committee are privileged. If a judge makes a preliminary finding that such proceedings, records, or communications are relevant to an anticompetitive action, or a civil rights proceeding brought under Chapter 42, U.S.C.A. 1983, then such proceedings, records, or communications are not confidential to the extent they are deemed relevant.
(h) Written or oral communications made to a medical peer review committee and the records and proceedings of such a committee may be disclosed to another medical peer review committee, appropriate state or federal agencies, national accreditation bodies, or the state board of registration or licensure of this or any other state.
(i) Disclosure of confidential peer review committee information to the affected physician pertinent to the matter under review shall not constitute waiver of the confidentiality provisions provided in this Act. If a medical peer review committee takes action that could result in censure, suspension, restriction, limitation, revocation, or denial of membership or privileges in a health-care entity, the affected physician shall be provided a written copy of the recommendation of the medical peer review committee and a copy of the final decision, including a statement of the basis for the decision.
(j) Unless disclosure is required or authorized by law, records or determinations of or communications to a medical peer review committee are not subject to subpoena or discovery and are not admissible as evidence in any civil judicial or administrative proceeding without waiver of the privilege of confidentiality executed in writing by the committee. The evidentiary privileges created by this Act may be invoked by any person or organization in any civil judicial or administrative proceeding, unless the person or organization has secured a waiver of the privilege executed in writing by the chairman, vice-chairman, or secretary of the affected medical peer review committee. If under Subsection (o) of this section a medical peer review committee, a person participating in peer review, or any organization named as a defendant in any civil action filed as a result of participation in peer review may use otherwise confidential information in his or her own defense, then a plaintiff in such a proceeding may disclose records or determinations of or communications to a medical peer review committee in rebuttal to information supplied by the defendant. Any person seeking access to privileged information must plead and prove waiver of the privilege. A member, employee, or agent of a medical peer review committee who provides access to otherwise privileged communications or records in cooperation with law enforcement authorities in criminal investigations is not considered to have waived any privilege established under this Act.
(k) Governing bodies and medical staffs of health-care entities and others shall comply fully with a subpoena for documents or information issued by the board under Subsection (i) of Section 2.09 of this Act. The disclosure of documents or information under such a subpoena does not constitute a waiver of the privilege associated with medical peer review committee proceedings. Failure to comply with such a subpoena constitutes grounds for disciplinary action against the facility or individual by the appropriate licensing board.
(l) A cause of action does not accrue against the members, agents, or employees of a medical peer review committee or against the health-care entity from any act, statement, determination or recommendation made, or act reported, without malice, in the course of peer review as defined by this Act.
(m) A person, health-care entity, or medical peer review committee, that, without malice, participates in medical peer review activity or furnishes records, information, or assistance to a medical peer review committee or the board is immune from any civil liability arising from such an act.
(n) A person or health-care entity may not be found liable in any civil action for failure to report to the board unless the failure was committed knowingly or wilfully, except that the appropriate state licensing body may take action against a licensed institution or person for not reporting as required under this Act.
(o) A medical peer review committee, a person participating in peer review, or a health-care entity named as a defendant in any civil action filed as a result of participation in peer review, may use otherwise confidential information obtained for legitimate internal business and professional purposes, including use in its or his own defense. Such a use does not constitute a waiver of the confidential and privileged nature of medical peer review committee proceedings.
(p) A medical peer review committee, a person participating in peer review, or a health-care entity named as a defendant in any civil action filed as a result of participation in peer review, may file a counterclaim in any pending action or may prove a cause of action in a subsequent suit to recover any defense costs, including court costs, attorney's fees, and any damages incurred as a result of the civil action if the plaintiff's original suit is determined to be frivolous or brought in bad faith.
(q)(1) No person shall suspend, terminate, or otherwise discipline or discriminate against a person reporting to the board under this Act. A person has a cause of action against a health-care entity, or the owner or employee of such an entity, that suspends or terminates the employment of the person or otherwise disciplines or discriminates against the person for reporting to the board under Subsection (a), (c), or (d) of this section. The person may recover:
(A) actual damages, including damages for mental anguish even though no other injury is shown, or $1,000, whichever amount is greater;
(B) exemplary damages;
(C) costs of court; and
(D) reasonable attorney's fees.
(2) In addition to amounts recovered under Subdivision (1) of this subsection, a person whose employment is suspended or terminated in violation of this section is entitled to:
(A) reinstatement in the employee's former position or severance pay in an amount equal to three months of the employee's most current salary; and
(B) compensation for wages lost during the period of suspension or termination.
(3) A person who sues under this section has the burden of proof, but in the event of a determination by either the board or a court of competent jurisdiction that the reported case made the subject of the cause of action was a case in which the person was required to report under Subsection (a), (c), or (d) of this section, it is a rebuttable presumption that a person's employment was suspended or terminated for reporting an act that imperils the welfare of a patient if the person is suspended or terminated within 90 days after making a report in good faith.
(4) An action under this section may be brought in the district court of the county:
(A) in which the plaintiff resides;
(B) in which the plaintiff was employed by the defendant; or
(C) in which the defendant conducts business.
(r) If a court of competent jurisdiction makes a final determination that a report or complaint made to the board was made in bad faith, then such complaint shall be expunged from the physician's or applicant's individual historical record.
(s)(1) Reports, information, or records received and maintained by the board pursuant to this section and Section 5.05 of this Act, including any material received or developed by the board during an investigation or hearing, are strictly confidential and subject to the provisions of Subdivision (4) of this subsection. However, the board may disclose this confidential information only:
(A) in a disciplinary hearing before the board or in a subsequent trial or appeal of a board action or order;
(B) to the physician licensing or disciplinary authorities of other jurisdictions, to a local, state, or national professional medical society or association, or to a medical peer review committee located inside or outside this state that is concerned with granting, limiting, or denying a physician hospital privileges;
(C) pursuant to an order of a court of competent jurisdiction; or
(D) to qualified personnel for bona fide research or educational purposes, if personally identifiable information relating to any person or physician is first deleted.
(2) Disciplinary orders of the board against a physician and known hospital suspensions for 30 days or longer of a physician relating to the competence of a physician are not confidential.
(3) In no event may records and reports disclosed pursuant to this article by the board to others, or reports and records received, maintained, or developed by the board, by a medical peer review committee, or by a member of such a committee, or by a health-care entity be available for discovery or court subpoena or introduced into evidence in a medical professional liability suit arising out of the provision of or failure to provide medical or health-care services, or in any other action for damages.
(4) A person who unlawfully discloses this confidential information possessed by the board commits a Class A misdemeanor.
(t) The following persons are immune from civil liability:
(1) a person reporting to or furnishing information to a medical peer review committee or the board in good faith;
(2) a member, employee, or agent of the board, a member, employee, or agent of a medical peer review committee, a member, employee, or agent of a medical organization committee, or a medical organization district or local intervenor who takes any action or makes any recommendation within the scope of the functions of the board, committee, or intervenor program, if such member, employee, or agent acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him or her; and
(3) any member or employee of the board or any person who assists the board in carrying out its duties or functions provided by law.
(u) The reporting or assistance provided for in this section does not constitute state action on the reporting or assisting medical peer review committee or its parent organization.
Sec. 5.08. Physician-patient communication.
(a) Communications between one licensed to practice medicine, relative to or in connection with any professional services as a physician to a patient, is confidential and privileged and may not be disclosed except as provided in this section.
(b) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed except as provided in this section.
(c) Any person who receives information from confidential communications or records as described in this section other than the persons listed in Subsection (h) of this section who are acting on the patient's behalf may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.
(d) The prohibitions of this section continue to apply to confidential communications or records concerning any patient irrespective of when the patient received the services of a physician, except for medical records 100 years old or older requested for historical research purposes.
(e) The privilege of confidentiality may be claimed by the patient or physician acting on the patient's behalf.
(f) The physician may claim the privilege of confidentiality, but only on behalf of the patient. The authority to do so is presumed in the absence of evidence to the contrary.
(g) Exceptions to confidentiality or privilege in court or administrative proceedings exist:
(1) when the proceedings are brought by the patient against a physician, including but not limited to malpractice proceedings, and any criminal or license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claims or defense of a physician;
(2) when the patient or someone authorized to act on his behalf submits a written consent to the release of any confidential information, as provided in Subsection (j) of this section;
(3) when the purpose of the proceedings is to substantiate and collect on a claim for medical services rendered to the patient;
(4) in any civil litigation or administrative proceeding, if relevant, brought by the patient or someone on his behalf if the patient is attempting to recover monetary damages for any physical or mental condition including death of the patient. Any information is discoverable in any court or administrative proceeding in this state if the court or administrative body has jurisdiction over the subject matter, pursuant to rules of procedure specified for the matters;
(5) in any disciplinary investigation or proceeding of a physician conducted under or pursuant to this Act, provided that the board shall protect the identity of any patient whose medical records are examined, except for those patients covered under Subdivision (1) of Subsection (g) of this section or those patients who have submitted written consent to the release of their medical records as provided by Subsection (j) of this section;
(6) in any criminal investigation of a physician in which the board is participating or assisting in the investigation or proceeding by providing certain medical records obtained from the physician, provided that the board shall protect the identity of any patient whose medical records are provided in the investigation or proceeding, except for those patients covered under Subdivision (1) of Subsection (g) of this section or those patients who have submitted written consent to the release of their medical records as provided by Subsection (j) of this section. This subsection does not authorize the release of any confidential information for the purpose of instigating or substantiating criminal charges against a patient;
(7) in an involuntary civil commitment proceeding, proceeding for court-ordered treatment, or probable cause hearing under:
(A) Chapter 574, Health and Safety Code;
(B) Chapter 593, Health and Safety Code; or
(C) Chapter 462, Health and Safety Code;
(8) when the patient's physical or mental condition is relevant to the execution of a will;
(9) when the information is relevant to a proceeding brought under Subsection (1) of this section;
(10) in any criminal prosecution where the patient is a victim, witness, or defendant. Records are not discoverable until the court in which the prosecution is pending makes an in camera determination as to the relevancy of the records or communications or any portion thereof. Such determination shall not constitute a determination as to the admissibility of such records or communications or any portion thereof;
(11) to satisfy a request for medical records of a deceased or incompetent person pursuant to Section 4.01(e), Medical Liability and Insurance Improvement Act of Texas (Article 4590i, Vernon's Texas Civil Statutes); or
(12) to a court or a party to an action pursuant to a court order or court subpoena.
(h) Exceptions to the privilege of confidentiality, in other than court or administrative proceedings, allowing disclosure of confidential information by a physician, exist only to the following:
(1) governmental agencies if the disclosures are required or authorized by law;
(2) medical or law enforcement personnel if the physician determines that there is a probability of imminent physical injury to the patient, to himself, or to others, or if there is a probability of immediate mental or emotional injury to the patient;
(3) qualified personnel for the purpose of management audits, financial audits, program evaluations, or research, but the personnel may not identify, directly or indirectly, a patient in any report of the research, audit, or evaluation or otherwise disclose identity in any manner;
(4) those parts of the medical records reflecting charges and specific services rendered when necessary in the collection of fees for medical services provided by a physician or physicians or professional associations or other entities qualified to render or arrange for medical services;
(5) any person who bears a written consent of the patient or other person authorized to act on the patient's behalf for the release of confidential information, as provided by Subsection (j) of this section;
(6) individuals, corporations, or governmental agencies involved in the payment or collection of fees for medical services rendered by a physician;
(7) other physicians and personnel under the direction of the physician who are participating in the diagnosis, evaluation, or treatment of the patient;
(8) in any official legislative inquiry regarding state hospitals or state schools, provided that no information or records which identify a patient or client shall be released for any purpose unless proper consent to the release is given by the patient, and only records created by the state hospital or school or its employees shall be included under this subsection; or
(9) to health care personnel of a penal or other custodial institution in which the patient is detained if the disclosure is for the sole purpose of providing health care to the patient.
(i) Exceptions to the confidentiality privilege in this Act are not affected by any statute enacted before the effective date of this Act.
(j)
(1) Consent for the release of confidential information must be in writing and signed by the patient, or a parent or legal guardian if the patient is a minor, or a legal guardian if the patient has been adjudicated incapacitated to manage his personal affairs, or an attorney ad litem appointed for the patient, as authorized by Subtitle C, Title 7, Health and Safety Code; Subtitle D, Title 7, Health and Safety Code; Chapter XIII, Texas Probate Code; and Chapter 11, Family Code; or a personal representative if the patient is deceased, provided that the written consent specifies the following:
(A) the information or medical records to be covered by the release;
(B) the reasons or purposes for the release; and
(C) the person to whom the information is to be released.
(2) The patient, or other person authorized to consent, has the right to withdraw his consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the written notice of the withdrawal. A patient may not maintain an action against a physician for a disclosure made by the physician in good faith reliance on an authorization if the physician did not have written notice that the authorization was revoked.
(3) Any person who receives information made confidential by this Act may disclose the information to others only to the extent consistent with the authorized purposes for which consent to release the information was obtained.
(k) A physician shall furnish copies of medical records requested, or a summary or narrative of the records, including records received from a physician or other health care provider involved in the care or treatment of the patient, pursuant to a written consent for release of the information as provided by Subsection (j) of this section, except if the physician determines that access to the information would be harmful to the physical, mental, or emotional health of the patient, and the physician may delete confidential information about another patient or family member of the patient who has not consented to the release. The information shall be furnished by the physician within 30 days after the date of receipt of the request. If the physician denies the request, in whole or in part, the physician shall furnish the patient a written statement, signed and dated, stating the reason for the denial. A copy of the statement denying the request shall be placed in the patient's medical records.
(l) A person aggrieved by a violation of this section relating to the unauthorized release of confidential and privileged communications may petition the district court of the county in which the person resides, or in the case of a nonresident of the state, the District Court of Travis County, for appropriate injunctive relief, and the petition takes precedence over all civil matters on the docketed court except those matters to which equal precedence on the docket is granted by law. A person aggrieved by a violation of this section relating to the unauthorized release of confidential and privileged communications may prove a cause of action for civil damages.
(m) "Patient" for the purposes of this section means any person who consults or is seen by a person licensed to practice medicine to receive medical care.
(n) A person who may provide a copy of a record, or a summary or narrative of the record, to another under this section may provide the copy, summary, or narrative:
(1) on paper; or
(2) on microfilm, microfiche, computer hard disk, magnetic tape, or optical disk or by means of another appropriate medium, including a machine-readable medium, if the person who is to provide and the person who is to receive the copy, summary, or narrative agree to a form authorized by this subdivision.
(o) The physician may charge a reasonable fee for copying medical records and is not required to permit examination or copying until the fee is paid unless there is a medical emergency. The board by rule shall prescribe what constitutes reasonable fees for purposes of this subsection.
(p) A physician may not charge a fee for copying medical records under Subsection (o) of this section to the extent the fee is prohibited under Subchapter M, Chapter 161, Health and Safety Code.