Redefining the Battlefield: Expert Reports in Medical
Malpractice Litigation After H.B. 4

By JUSTICE GEORGE C. HANKS, JR. and RACHEL POLINGER-HYMAN

I. INTRODUCTION
The expert report requirement, viewed by many litigants as the Achilles’ heel of medical malpractice claims, was designed to reduce the filing of frivolous claims against health care professionals. In July 2003, as part of House Bill 4 (“HB 4”), the Legislature enacted some rather significant changes to this requirement to allow more consistency in its application by trial courts. By clarifying the court’s role as the gatekeeper for questionable claims, and by also expanding the scope of the expert report requirement, these changes significantly redefine the battlefield upon which future expert report disputes will be fought.
This article identifies the primary changes in the expert report requirement as a result of HB 4 and addresses some ramifications those changes impose on future litigation. This article also discusses how the 2003 changes may affect, and even make obsolete, some past appellate decisions that guided litigants as they cudgeled their way through this area of the law.

II. ANALYSIS OF THE CHANGES IN THE EXPERT REPORT REQUIREMENT
A. The Legal Players
The most recent incarnation of the expert report requirement can be found in Chapter 74 of the Texas Civil Practice and Remedies Code. Under Chapter 74, not only has the expert report battlefield been redefined, but also with the addition of some few choice words, so have the players. Indeed, one of the most striking changes in the expert report requirement is the increased scope of its application. Chapter 74’s expert report requirement will still apply to “health care liability claims” brought against a “health care provider” or “physician.”1 However, under Chapter 74’s expanded definition of these terms, many more litigants and claims will be brought under the umbrella of the expert report requirement. The expanded definitions expressly include many claims that the courts had previously determined were not subject to the requirement.2
For example, under Chapter 74, “health care liability claim” has been broadened to expressly include “professional or administrative services directly related to health care.”3 Under this definition, credentialing claims, which were previously held by Texas courts to fall outside the expert report requirement,4 will now fall inside the requirement.
Similarly, the expanded definition of “health care provider” creates entire new classes of potential defendants who will be able claim the shield of the expert report requirement. For example, in addition to including optometrists and chiropractors, Chapter 74 adds the category of “health care institution” as a covered entity. Health care institutions will include the following entities and their controlling individuals:5
• an ambulatory surgical center,
• an assisted living facility,
• an emergency medical services provider,
• a health services district created under Chapter 287 of the Health and Safety Code,
• a home and community support services agency,
• a hospice,
• a hospital,
• a hospital system,
• an intermediate care facility for the mentally retarded,
• a nursing home, and
• an end stage renal disease facility.

Ambulance services, never considered health care providers under article 4590i, are now covered by Chapter 74 because of the addition of “emergency medical services provider” to the definition of health care institution.6 Furthermore by adding owners and affiliates to the definition of a health care provider, the legislature has eliminated the argument that “owners or affiliates” of health care providers, who are not actually health care providers themselves, are not covered by the expert report requirement.7

B. The Procedural Weapons
Chapter 74 also equips attorneys on both sides of the bar with new procedural weapons regarding expert reports. The new statute shortens the time to file the requisite report after the filing of the malpractice claim and addresses the issue of defendants waiting to attack expert reports until it was too late for plaintiffs to timely file amended reports.8 It also simplifies the rules for obtaining an extension for filing amended reports and the trial court’s discretion to grant relief.9 Section 74.351 states, in relevant part, the following:
“In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties. Each defendant, physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.”10

Chapter 74 requires plaintiffs to file the requisite report within 120 days of filing a medical malpractice claim.11 Just as under article 4590i, if a party fails to timely serve an expert report, the court shall (1) enter an order awarding the defendant health care provider attorney’s fees and court costs and (2) dismiss the plaintiff’s claim with prejudice.12 It is interesting to note that the language identifying this order as a “sanction” has been deleted in Chapter 74.13
Additionally, if an expert report is filed, defendants must challenge the adequacy of the expert report within 21 days after the date expert reports are served.14 To grant a motion challenging the adequacy of an expert report, the court must find that the report does not represent an “objective good faith” effort to comply with the definition of expert report.15 This standard provides the trial courts with greater guidance on the factors to consider in determining the adequacy of export reports. Courts may grant a single 30 day extension to allow a plaintiff to cure deficiencies in an expert report.16 The permissive language of “may” here seems to be in counterpoint to the addition of the less discretionary language added to section 74.351(l) of “objective” good faith effort.17 Significantly, the 30-day extension starts running from the time of the court’s order, and not from the time plaintiffs are aware of the court’s order.18 Consequently, the statutory maximum period of time for filing an expert report is not necessarily 150 days (120+30). It is 30 days starting from the time the order is signed by the court, which could extend beyond 150 days. Procedurally, an interlocutory appeal is available if defendants’ objection is overruled or if the report is found deficient. 19
Most notably, the provisions contained in article 4590i, section 13.01, that previously permitted plaintiffs to seek relief for inadequate reports have been eliminated.20 The “good cause exception” for granting a 30-day extension to file an expert report under section 13.01(f) was not included in Chapter 74. Furthermore, under Chapter 74, there is a prerequisite for triggering the court’s consideration of a 30-day extension that was not present in section 13.01(f): expert reports under section 74.351(c) must be filed. The logic of section 74.351(c) is that expert reports must be filed, and only if they are found deficient can courts consider granting 30-day extensions. Consequently, this means that the 120-day expert report rule is rigid: if deadlines are missed, claims are dismissed with prejudice (unless parties on both sides agree to the extension).21 Therefore, reported cases dealing with the “good cause exception” are now rendered moot.22 The non-extension alternatives to timely filing adequate expert reports that existed under article 4590i (e.g., cost bonds under 13.01 (a) to allow 90-day extensions or voluntary non-suits to allow the possibility of refiling claims later)23 have also been eliminated in Chapter 74.
Likewise, section 13.01(g), which had previously allowed the court to grant an additional 30-day extension, even if the 210-day statutory maximum filing deadline had passed, upon a showing that plaintiff’s failure to file an expert report was due to accident or mistake, was also not included in section 74.351(c). By omitting this provision, Chapter 74 provisions make it easier for the trial courts to make dispositive rulings on expert reports. Historically, trial courts were hesitant to dismiss a case with prejudice when plaintiffs claimed that the report was deficient because of an “accident” or “mistake.”24 Trial courts often found that only the most outrageous circumstances would fall outside of the “accident” or “mistake” threshold.25 Now, these decisions do not have to be made.
In summation, with the elimination of sections 13.01(a)-(c), (f) and (g), plaintiffs are now under more pressure to file adequate expert reports the first time: (1) If plaintiffs do not timely file an expert report, then their claims will be dismissed with prejudice; (2) if they timely file an expert report but the contents are found deficient, then their claims may still be dismissed as (a) granting one 30-day extension is up to the discretion of the trial court and (b) now there are less options available for correcting inadequate reports.

C. Reconnaissance Mission:Limited Discovery
Chapter 74 also limits discovery until plaintiffs serve adequate expert reports.26 Indeed, section 74.351 provides that all discovery is stayed until plaintiffs serve expert reports and curricula vitae.27 However, there are exceptions to this rule. Plaintiffs are allowed to obtain information in all of the usual ways that relate to plaintiffs’ health care: written discovery, depositions on written questions, and discovery from non-parties.28 Furthermore, plaintiffs are permitted to take two depositions before serving expert reports.29 Interestingly, there were special provisions introduced in legislative committees regarding pre-suit depositions under Texas Rule of Civil Procedure 202 which would have affected medical malpractice lawsuits. These proposed changes were included as part of the HB 4 on the House side and were amended extensively in the House committee. The proposed changes were also in the Senate version of the bill. However, the changes were subsequently dropped altogether from both versions. Consequently, it is likely there will be some controversy about whether the two deposition requirement includes any pre-suit depositions, or applies only to post-filing depositions.
Article 4590i contained a provision calling for the creation of a health care discovery panel to promulgate standardized discovery in both directions to litigants in health care liability cases.30 However, as of this date, no standardized discovery has been adopted by the Texas Supreme Court and it is unclear whether this panel will be continued under section 74.351.

D. The Battle: Expert Qualification Requirements
Now that we know who the relevant players are on the expert report battlefield and we have obtained the allowable discovery under Chapter 74, we are armed with the necessary procedural weapons to engage in the battle: challenging and defending expert qualification requirements. Chapter 74 sets forth expert qualification requirements, for claims brought against both physicians and health care providers.31 Chapter 74 also sets out what the court must consider when determining whether the expert qualifications have been met.32 Furthermore, Chapter 74, unlike its predecessor, includes provisions for dentists and podiatrists who may now serve as experts.33
The qualifications for experts on claims against health care providers mirrors the qualifications for experts on claims against physicians.34 The qualifications for expert witnesses regarding physician care remain largely unchanged from article 4590i.35 In lawsuits involving health care liability claims against health care providers, persons may qualify expert witnesses on issues of whether the health care providers departed from accepted standards of medical care only if the persons: (1) are practicing health care in a field of practice that involves the same type of treatment as that delivered by defendants, if the defendants are individuals, at the time such testimony is given, or were practicing that type of health care at the time the claim arose; (2) have knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illnesses, injuries, or conditions involved in the claims; and (3) are qualified on the basis of training or experience to offer expert opinions regarding those accepted standards of medical care.36
Furthermore, in determining whether witnesses are qualified on the basis of training or experience, the statute provides that courts shall consider whether, at the time the claims arose or when testimony is given, the witnesses: (1) are certified by licensing agencies or have other substantial training or experience in an area of health care relevant to the claims; and (2) are actively practicing health care in rendering medical care services relevant to the claims.37
Courts shall apply these criteria in determining whether experts are qualified to offer expert testimony on the issue of whether providers departed from accepted standards of care, but may depart from those criteria if, under the circumstances, courts determine that there is a good reason to admit the expert testimony.38 Courts shall state on the record the reasons for admitting the testimony if courts depart from the criteria.39
Moreover, persons may qualify as expert witnesses on issues of causation, with respect to alleged breaches of the standards of care by physicians or health care professionals, but only if persons are physicians or otherwise are qualified to testify under the Texas Rules of Evidence on issues of causation.40 With respect to claims against dentists (or podiatrists), experts must be dentists (or podiatrists), physicians, or must otherwise qualify to testify under the Texas Rules of Evidence on the issue of causation.41
Chapter 74 also establishes a uniform procedure for challenging expert qualifications before trial. A pretrial objection to the qualifications of expert witnesses must be made no later than (1) the 21st day after the date the objecting party receives a copy of the witness’s curriculum vitae, or (2) the date of the witness’s deposition, whichever is later.42 If circumstances arise after the date on which the objection must be that could not have been reasonably anticipated by a party before that date and that the party believes in good faith provide a basis for an objection to a witness’s qualifications, and if an objection was not made previously, this subsection does not prevent the party from making an objection as soon as practicable under the circumstances.43 The court shall conduct hearings to determine whether witnesses are qualified. As soon as practicable after the filing of an objection and, if possible, before trial,44 if objecting parties are unable to object in time for hearings to be conducted before trial, then the hearings shall be conducted outside the presence of the jury.45 However, objecting parties may still examine or cross-examine witnesses at trial concerning their qualifications.46
The detailing of expert qualifications for lawsuits against health care providers and to testify regarding causation, which were lacking in article 4590i may, in time, result in less litigation over expert qualifications as trial court rulings on this issue will become more consistent.

E. The Stalemate
Finally, Chapter 74 expressly prohibits the use of expert reports submitted under article 4590i, section 13.01(d), by “any party” to the lawsuit, not just defendants. It also addresses the thorny issue of waiver of the bar against discovery regarding these reports. Using the statutory language of article 4590i, section 13.01(k)(1), plaintiffs previously attempted to use the expert report they were required to file under section 13.01(d) as an evidentiary shield against defendants’ no-evidence motion for summary judgment. Asserting the express language of section 13.01(k)(1) as support, medical malpractice plaintiffs could argue that their expert report was “admissible in evidence” in response to defendants’ no-evidence motion for summary judgment. Plaintiffs argued that this was proper because, by its express language, the prohibition regarding the use of expert reports as “admissible in evidence,” contained in section 13.01(k), applied only to defendants. Plaintiffs could also argue, asserting the language of section 13.01(k)(3), that this use did not allow defendants to then conduct discovery regarding the report.
Specifically, article 4590i, section 13.01(k) stated:
“Notwithstanding any other law, an expert report filed under this section:
(1) is not admissible in evidence by a defendant;
(2) shall not be used in a deposition, trial, or other proceeding; and
(3) shall not be referred to by a defendant during the course of the action for any purpose.”47

Given this language, the courts were faced with an interesting quagmire of statutory interpretation (i.e., whether, under the statute, defendants were to be treated differently than plaintiffs). There was little legislative guidance on the subject. Nevertheless, primarily focusing on the language contained in article 4590i, section 13.01(k)(2), Texas courts interpreted section 13.01(k) to mean that plaintiffs, in a medical malpractice suit, cannot use the same expert reports they filed in order to comply with section 13.01(d) as summary judgment evidence.48
Chapter 74 clarifies this issue in two ways. First, Texas Civil Practice and Remedies Code section 74.351(k) restates article 4590i, section 13.01(k), and replaces the word “defendant” with “any party.”49 Second, Chapter 74 provides that if plaintiffs choose to use initial reports in any way, defendants will be allowed to use and conduct discovery regarding the reports.50 Section 74.351(t) provides that “if an expert report is used by the claimant in the course of the action for any purpose other than to meet the service requirement of [§ 74.351(a)], the restrictions imposed by [74.351(k)] on use of the expert report by any party are waived.”51 Accordingly, in medical malpractice cases filed after September 1, 2003, plaintiffs must be very careful in how they use, if at all, the initial expert report.

F. Redefining the Battlefield: Examples of How These New Changes May Affect Current Case Law
The best illustration of the impact of Chapter 74 can be seen by applying these new standards to current expert report requirement case law. For the past two years, American Transitional Care Centers of Texas, Inc. v. Palacios52 has been one of the leading appellate opinions regarding the application of the expert report requirement. However, a factual pattern like that occurring in Palacios would never happen under section 74.351.
Summary of Facts: Plaintiffs missed the 90 day expert report deadline; they posted bond; they missed the 180 day deadline; the court granted an extension; defendants argued that the expert report once filed was inadequate; the trial court agreed; the Court of Appeals reversed under the “good faith effort” standard making all inferences in favor of plaintiffs’ efforts to file a good faith report; the Texas Supreme Court reversed and dismissed the claims.
Application: Under Chapter 74, the alternatives that plaintiffs employed to extend their expert report deadlines no longer exist. In order to be considered for a one-time 30-day extension, plaintiffs are now required to have first filed an expert report within 120 days after their claims were filed. Without such a showing, dismissal is mandated.
Although the Texas Supreme Court analyzed the adequacy of the Palacios’ expert report under the “good faith effort” standard of section 13.01, this analysis will still provide a roadmap for trial courts to use in determining what constitutes an “objective good faith effort” under section 74.351(l). In Palacios, the Texas Supreme Court held that the trial court should look solely at the report itself to determine its adequacy and not look to evidence outside the report or make inferences from the report supporting plaintiffs’ belief that they had filed an adequate report.53 Indeed, the Court held that “the only information relevant to the inquiry is within the four corners of the document.”54 This will still be true under the “objective” standard: the subjective belief of the parties and what they did to provide an adequate report will be irrelevant. The courts will not make any inferences in favor of an adequate report. Rather, courts will look solely at the four corners of the report and the requirements of expert reports under section 74.351 to resolve the motion to dismiss.
The Supreme Court also found that the “abuse of discretion” standard was the appropriate standard of review of a trial court’s decision regarding whether to dismiss a claim for failure to provide an adequate report.55 However, section 74.351(b)’s deletion of the word “sanction” in describing the court’s mandatory order dismissing the case for failure to file the report may affect the Supreme Court’s analysis in using this standard of review. In Palacios, one of the three reasons the Court pointed out that the language of former section 13.01 mandated the adoption of the abuse of discretion standard was the inclusion of the word “sanction.” The Court noted that sanctions are typically reviewed under this standard. With this word removed, an argument could be made that under section 74.351 another more rigorous standard should be applied to the trial court’s determination in order to preserve the legislative balance between the elimination of frivolous suits and a litigant’s right to have a trial on the merits regarding her claim. Whether this in fact occurs remains to be seen.


III. TABLE OF CHANGES IN THE LAW

IV. CONCLUSION
Chapter 74 of the Texas Civil Practice and Remedies Code has laid the groundwork for future legal battles over expert reports. Despite changes now embodied in Chapter 74, expert report requirements will continue to be a primary focus of medical malpractice litigation for at least the near term. This will be true because defense counsel will continue to perceive expert report requirements as the Achilles’ heel of medical malpractice claims. Nevertheless, as future appellate court opinions are written, the changes now appearing in Chapter 74 should ultimately reduce medical malpractice litigation as the parties become better able to reasonably predict the legal consequences of those changes.

ENDNOTES
1. The relevant definitions are found in Tex. Prac. Rem. Code Ann. § 74.001. The italicized portions of the following definitions indicate language not included in article 4590i.
“Health care liability claim” is defined as a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.
“Physician” means an individual licensed to practice medicine in this state; a professional association organized under the Texas Professional Association Act by an individual physician or group of physicians; a partnership or limited liability partnership formed by a group of physicians; a nonprofit health corporation certified under Section 162.001, Occupations Code; or a company formed by a group of physicians under the Texas Limited Liability Company Act.
“Health care provider” means any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including: a registered nurse, a dentist, a podiatrist, a pharmacist, a chiropractor, an optometrist, or a health care institution. The term also includes: an officer, director, shareholder, member, partner, manager, owner, or affiliate of a health care provider or physician; or an employee, independent contractor, or agent of a health care provider or physician acting in the course and scope of the employment or contractual relationship.
Compare H.B. 4, Chapter 10 Tex. Prac. Rem. Code Ann. § 74.001 (Vernon Supp. 2004) with Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon 2003). 2. Texas courts had consistently held that professional or services not expressly listed in these definitions were not covered by the expert report requirement. See, e.g., Neasbitt v. Warren, 22 S.W.3d 107, 110 (Tex. App.—Fort Worth 2000, no pet.); Grace v. Colorito, 4 S.W.3d 765 (Tex. App.—Austin 1999, pet. denied); Terry v. Barrinuevo, 961 S.W. 2d 528, 530-31 (Tex. App.—Houston [1st Dist.] 1997, no pet.); Townsend v. Catalina Ambulance Co., 857 S.W.2d 791, 796 (Tex. App.—Corpus Christi 1993, no writ). 3. H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.001(a)(13) (Vernon Supp. 2004). 4. Texas courts had previously held that a patient’s claims against a hospital for negligently credentialing and recredentialing physicians were not governed by Medical Liability and Insurance Improvement Act, and thus, a patient was not required to provide an expert report. In coming to this conclusion, the courts reasoned that credentialing claims did not arise out of medical care, health care, or safety during medical care, treatment, or confinement. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon 2003); See Rose v. Garland Community Hosp., 87 S.W.3d 188 (Tex. App.—Dallas 2002, no pet.). 5. H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.001(a)(11)(A)-(K) (Vernon Supp. 2004). 6. See Townsend v. Catalina Ambulance Co., 857 S.W.2d 791 (Tex. App.—Corpus Christi 1993, no writ). 7. See Cresthaven Nursing Residence v. Freeman, No. 07-02-0011-CV, 2003 Tex. App. LEXIS 1187 (Tex. App.—Amarillo Feb. 5, 2003, no pet.), aff’d as modified, 2003 Tex. App. LEXIS 4291 (Tex. App.—Amarillo May 19, 2003, no pet.). 8. See Quentin Brogdon, Palacios and Article 4590i:Trying to Make a Silk Purse out of a Sow’s Ear, 65 Tex. B.J. 512 (2002). 9. H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.351(c) (Vernon Supp. 2004). 10. H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.351(a) (Vernon Supp. 2004). 11. Id. at § 74.351(a). 12. Id. at § 74.351(b). 13. This may have important ramifications on the standard of review applied by the appellate courts in examining whether a trial court correctly dismissed a claim for failure to provide an adequate and timely report. See discussion infra regarding American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001). 14. H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.351(a) (Vernon Supp. 2004). 15. Id. at § 74.351(l). Under article 4590i the standard for reviewing the adequacy of an expert report was simply “good faith” and some courts incorporated objective as well as subjective factors into this analysis. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01 (l) (Vernon 2003). 16. H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.351(c) (Vernon Supp. 2004). 17. Id. at § 74.351(l). 18. Compare H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.351(c) (Vernon Supp. 2004) with Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(f) (Vernon 2003). 19. Tex. Civ. Prac. & Rem. Code. Ann. § 51.012 (Vernon 2003). 20. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(f)-(g) (Vernon 2003). 21. H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.351(a) (Vernon Supp. 2004). 22. See Richburg v. Wolf, 48 S.W.3d 375 (Tex. App.—Eastland 2001 pet. denied); Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002); Hightower v. Saxon, 54 S.W.3d 380 (Tex. App.—Waco 2001, no pet.). 23. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(a)-(c) (Vernon 2003). 24. See Whitworth v. Blumenthal, 59 S.W.3d 393, 401-02 (Tex. App.—Dallas 2001, pet. dism’d by agr.); Horsley-Layman v. Angeles, 968 S.W.2d 533, 536-37 (Tex. App.—Texarkana 1998, no pet.). Texas courts also found that calendaring errors could constitute “accident” or “mistake.” See Presbyterian Healthcare Sys. v. Afangideh, 993 S.W.2d 319, 323 (Tex. App.—Eastland 1999, pet. denied); Ferrell v. Ferrell, 820 S.W.2d 49, 50 (Tex. App.—Corpus Christi 1991, writ den’d); Kirk v. Farmers Aerial Spraying Service, Inc., 496 S.W. 2d 739, 741-42 (Tex. Civ. App.—Amarillo 1973, no writ); Hendricks v. Williams, 485 S.W.2d 304 (Tex. Civ. App.—Corpus Christi 1972, no writ); Republic Bankers Life Ins. Co. v. Dixon, 469 S.W.2d 646 (Tex. Civ. App.—Tyler 1971, no writ). 25. See Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003); Walker v. Thornton, 67 S.W.3d 475 (Tex. App.—Texarkana 2002, no pet.); In re Collum and Carney Clinic Assoc., 62 S.W.3d 924 (Tex. App.—Texarkana 2001, no pet); Powers v. Mem’l Hermann Hosp. Sys., 81 S.W.3d 463 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). 26. H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.351(s)-(u) (Vernon Supp. 2004). 27. Id. at § 74.351(s). 28. Id. 29. Id. at § 74.351(u). 30. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 6.03 (Vernon 2003). 31. H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.351(r) (Vernon Supp. 2004). 32. Id. See also TEX. CIV. PRAC. & REM. CODE § 74.401(a) (Vernon 2003). 33. H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann.. § 74.351(r)(5)(B)-(E) (Vernon Supp. 2004). 34. Id. at § 74.351(r)(5)(A). 35. Compare H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.351(r)(5)(A) and § 74.402 (Vernon Supp. 2004) with Tex. Rev. Civ. Stat. Ann. art. 4590i, § 14.01 (Vernon 2003). 36. TEX. CIV. PRAC. & REM. CODE § 74.401(a) (Vernon 2003). 37. Id. at § 74.401(c). 38. Id. at § 74.401(d). 39. Id. 40. Id. at § 74.403(a). 41. TEX. CIV. PRAC. & REM. CODE § 74.403(b)-(c) (Vernon 2003). 42. H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.351(a) (Vernon Supp. 2004). 43. TEX. CIV. PRAC. & REM. CODE §§ 74.401(e), 74.402(e), 74.403(e) (Vernon Supp. 2004). 44. Id. 45. Id. 46. Id. 47. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(k) (Vernon 2003) (emphasis added). 48. See Patriacca v. Frost, 98 S.W.3d 303, 306 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Trusty v. Strayhorn, 87 S.W.3d 756, 762 (Tex. App.—Texarkana 2002, no pet.); Keeton v. Carrasco, 53 S.W.3d 13, 24-25 (Tex. App.—San Antonio 2001, pet. denied); Garcia v. Willman, 4 S.W.3d 307, 310 (Tex. App.—Corpus Christi 1999, no pet.); Coleman v. Woolf, No. 02-03-075-CV, 2004 Tex. App. LEXIS 1149 (Tex. App.—Fort Worth Feb. 5, 2004, no pet.). 49. H.B. 4, Chapter 10 Tex. Rev. Civ. Stat. Ann. § 74.351(k) (Vernon Supp. 2004). 50. Id. at § 74.351(t). 51. Id. (emphasis added). 52. 46 S.W.3d 873 (Tex. 2001). 53. Id. 54. Id. at 878. 55. Id. at 876.

Justice George C. Hanks, Jr. of the First Court of Appeals formerly served as judge of the 157th District Court in Houston. He earned his B.A. summa cum laude from Louisiana State University, graduating first in his class, and his J.D. from Harvard Law School. He is an adjunct professor at the
University of Houston Law Center, an instructor at the National Judicial College and a member of the American Law Institute and the College of the State Bar of Texas.

Rachel Polinger-Hyman earned her B.A. cum laude from Columbia University where she received the Louis N. Sudler scholarship for the arts for her writing achievements. She also spent her junior year of college abroad at Cambridge University, in Cambridge, England. She earned her J.D. cum laude from the University of Houston Law Center.

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