(a) In a suit against a physician or health care provider involving a health care liability claim that is based on the negligent failure of the physician or health care provider to disclose or adequately disclose the risks and hazards involved in the medical care or surgical procedure rendered by the physician or health care provider:
(1) both disclosure made as provided in § 74.104 and failure to disclose based on inclusion of any medical care or surgical procedure on the panel’s list for which disclosure is not required shall be admissible in evidence and shall create a rebuttable presumption that the requirements of Sections 74.104 and 74.105 have been complied with and this presumption shall be included in the charge to the jury; and
(2) failure to disclose the risks and hazards involved in any medical care or surgical procedure required to be disclosed under Sections 74.104 and 74.105 shall be admissible in evidence and shall create a rebuttable presumption of a negligent failure to conform to the duty of disclosure set forth in Sections 74.104 and 74.105, and this presumption shall be included in the charge to the jury; but failure to disclose may be found not to be negligent if there was an emergency or if for some other reason it was not medically feasible to make a disclosure of the kind that would otherwise have been negligence.
(b) If medical care or surgical procedure is rendered with respect to which the disclosure panel has made no determination either way regarding a duty of disclosure, the physician or health care provider is under the duty otherwise imposed by law.

Terms Used In Texas Civil Practice and Remedies Code 74.106

  • Charge to the jury: The judge's instructions to the jury concerning the law that applies to the facts of the case on trial.
  • Disclosure panel: means the Texas Medical Disclosure Panel. See Texas Civil Practice and Remedies Code 74.001
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Health care: means any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement. See Texas Civil Practice and Remedies Code 74.001
  • Health care liability claim: means 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. See Texas Civil Practice and Remedies Code 74.001
  • 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:
    (i) a registered nurse;
    (ii) a dentist;
    (iii) a podiatrist;
    (iv) a pharmacist;
    (v) a chiropractor;
    (vi) an optometrist;
    (vii) a health care institution; or
    (viii) a health care collaborative certified under Chapter 848, Insurance Code. See Texas Civil Practice and Remedies Code 74.001
  • Medical care: means any act defined as practicing medicine under § 151. See Texas Civil Practice and Remedies Code 74.001
  • Physician: means :
    (A) an individual licensed to practice medicine in this state;
    (B) a professional association organized under the Texas Professional Association Act (Article 1528f, Vernon's Texas Civil Statutes) by an individual physician or group of physicians;
    (C) a partnership or limited liability partnership formed by a group of physicians;
    (D) a nonprofit health corporation certified under § 162. See Texas Civil Practice and Remedies Code 74.001
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