SECTION 187.31. Evidence

(a) Medical records. Medical records of patients shall be accompanied by an affidavit in the form approved and furnished by the board that contains the requisite elements to comply with the Texas Rules of Evidence, 902(10)(b), relating to form of affidavits.

(b) Peer review proceedings.

(1) Pursuant to Section 164.0071 of the Act, a record, report, or other information that has been submitted to the board in accordance with Chapter 160 of the Act by a medical peer review committee, professional review body or any health care entity may be disclosed by Board Staff and shall be admitted into evidence as the basis for the opinion of an expert witness called by the board. The authorization to disclose such records in a disciplinary hearing, provided in Section 160.006(a)(1) and Section 164.0071 of the Act, creates a statutory exception to the hearsay rule, as stated in Article VIII, Texas Rules of Evidence.

(2) In accordance with §160.009 of the Act, parties and witnesses can be required to produce documents and information. As provided in §160.0071(c) of the Act, however, a member of a peer review committee is not subject to subpoena and may not be compelled to provide evidence in a hearing or a deposition regarding medical peer review proceedings otherwise privileged pursuant to §160.007 of the Act.

(c) Deferred adjudications. In accordance with §2001.081 of the APA and consistent with §§164.053(a)(1) and 164.053(b) of the Act, deferred adjudications are admissible as evidence that the respondent violated the law with which the respondent was charged and pled to, which gave rise to the deferred adjudication.

(d) Documents. Subject to these requirements, if a hearing will be expedited and the interests of the parties will not be substantially prejudiced, any part of the evidence may be received in written form.

(1) Copies. Documentary evidence may be received in the form of copies or excerpts. On request, parties shall be given an opportunity to compare the copy with the original.

(2) Statement of Standard of Care. In lieu of pre-filed testimony in contested proceedings in which the quality or standard of medical care is at issue, the ALJ may require the parties to file a Statement of Standard of Care for each expert witness who will testify in the party's case-in-chief. The Statement shall set forth the expert's opinion regarding:

(A) any standard of care that applies to the current case, and

(B) how the standard of care applies and/or was violated in the current case. The expert witness shall be subject to direct and cross-examination and the statement shall be admissible into evidence.

Source Note: The provisions of this §187.31 adopted to be effective January 6, 2002, 26 TexReg 10867; amended to be effective July 4, 2004, 29 TexReg 6091; amended to be effective November 7, 2004, 29 TexReg 10113; amended to be effective January 25, 2006, 31 TexReg 394