SECTION 281.18. Reporting Professional Liability Claims

(a) Reporting responsibilities.

(1) Every insurer or other entity providing pharmacist's professional liability insurance, pharmacy technician professional and supplemental liability insurance, or druggist's professional liability insurance covering a pharmacist, pharmacy technician, or pharmacy license holder in this state shall submit to the board the information described in subsection (b) of this section at the time prescribed.

(2) The information shall be provided with respect to a notice of claim letter or complaint filed against an insured in a court, if the notice or complaint seeks damages relating to the insured's conduct in providing or failing to provide appropriate service within the scope of pharmaceutical care or services, and with respect to settlement of a claim or lawsuit made on behalf of the insured.

(3) If a pharmacist, pharmacy technician, or a pharmacy licensed in this state does not carry or is not covered by pharmacist's professional liability insurance, pharmacy technician professional and supplemental liability insurance, or druggist's professional liability insurance, or if a pharmacist, pharmacy technician, or a pharmacy licensed in this state is insured by a non-admitted carrier or other entity providing pharmacy professional liability insurance that does not report under this Act, the duty to report information under subsection (b) of this section is the responsibility of the particular pharmacist, pharmacy technician, or pharmacy license holder.

(4) For the purposes of this section a professional liability claim or complaint shall be defined as a cause of action against a pharmacist, pharmacy, or pharmacy technician for conduct in providing or failing to provide appropriate service within the scope of pharmaceutical care or services, which proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract, to include pharmacist's interns, pharmacy residents, supervising pharmacists, on-call pharmacists, consulting pharmacists.

(b) Information to be reported and due dates. The following reports are required for claims initiated or resolved on or after September 1, 1999.

(1) Initial report. Not later than the 30th day after receipt of the notice of claim letter or complaint by the insurer if the insurer has the duty to report, or by the pharmacist, pharmacy technician, or a pharmacy if the license holder has the duty to report, the following information must be furnished to the board on a form provided by the board:

(A) the name and address of the insurer;

(B) the name and address of the insured and type of license or registration held (pharmacist, pharmacy or pharmacy technician):

(C) the insured's Texas pharmacist or pharmacy license number or pharmacy technician registration number;

(D) certification, if applicable;

(E) the policy number;

(F) name(s) of plaintiff(s);

(G) date of injury;

(H) county of injury;

(I) cause of injury, e.g., dispensing error;

(J) nature of injury;

(K) type of action, e.g., claim only or lawsuit;

(L) name and phone number of the person filing the report; and

(M) a copy of the notice of claim letter or the lawsuit filed in court.

(2) Follow-up report. Within 105 days after disposition of the claim, the following information must be provided to the board on a form provided by the board:

(A) the name and address of the insured and type of license or registration held (pharmacist, pharmacy or pharmacy technician):

(B) the insured's Texas pharmacist or pharmacy license number or pharmacy technician registration number;

(C) name(s) of plaintiff(s);

(D) date of disposition;

(E) type of disposition, e.g., settlement, judgment;

(F) amount of disposition;

(G) whether an appeal has been taken and by which party; and

(H) name and phone number of the person filing the report.

(3) Definition. For the purpose of this section, disposition of a claim shall include circumstances where a court order has been entered, a settlement agreement has been reached, or the complaint has been dropped or dismissed.

(c) Report format

(1) Separate reports are required for each defendant licensee or registrant.

(2) The information shall be reported on a form provided by the board.

(3) A court order or settlement agreement may be submitted as an attachment to the follow-up report.

(d) Claims not required to be reported. Examples of claims that are not required to be reported under this section are the following:

(1) product liability claims (i.e., where a licensee invented a medical device which may have injured a patient but the licensee has no personal pharmacist-patient relationship with the specific patient claiming injury by the device);

(2) antitrust allegations;

(3) allegations involving improper peer review activities;

(4) civil rights violations; or

(5) allegations of liability for injuries occurring on a licensee's property, but not involving a breach of duty (i.e., slip and fall accidents).

(e) Liability. An insurer reporting under this section, its agents or employees, or the board or its employees or representatives are not liable for damages in a suit brought by any person or entity for reporting as required by this section or for any other action taken under this section.

(f) Limit on use of information reported.

(1) Information submitted to the board under this section and the fact that the information has been submitted to the board may not be:

(A) offered in evidence or used in any manner in the trial of a suit described in this section; or

(B) used in any manner to determine the eligibility or credentialing of a pharmacy to participate in a health insurance plan defined by the Insurance Code.

(2) A report received by the board under this section is not a complaint for which a board investigation is required except that the board shall review the information relating to a pharmacist, pharmacy technician, or pharmacy license holder against whom at least three professional liability claims have been reported within a five-year period in the same manner as if a complaint against the pharmacist, pharmacy technician, or pharmacy license holder had been made under Chapter 555 of the Act. The board may initiate an investigation of pharmacist, pharmacy technician, or pharmacy license holder based on the information received under this section.

(3) The information received under this section may be used in any board proceedings as the board deems necessary.

(g) Confidentiality. Information submitted under this section is confidential, except as provided in subsection (f)(3) of this section, and is not subject to disclosure under Chapter 552, Government Code.

(h) Penalty. The Texas Department of Insurance may impose on any insurer subject to this Act sanctions authorized by §§82.051-82.055 (formerly §7, Article 1.10) of the Texas Insurance Code, if the insurer fails to report information as required by this section.

Source Note: The provisions of this §281.18 adopted to be effective March 29, 2000, 25 TexReg 2572