2023 Texas Statutes › Civil Practice and Remedies Code › Title 4 - Liability in Tort › Chapter 90 - Claims Involving Asbestos and Silica › Subchapter A. General Provisions › Section 90.003. Reports Required for Claims Involving Asbestos-Related Injury

Sec. 90.003.  REPORTS REQUIRED FOR CLAIMS INVOLVING ASBESTOS-RELATED INJURY.  (a)  A claimant asserting an asbestos-related injury must serve on each defendant the following information:
(1)  a report by a physician who is board certified in pulmonary medicine, occupational medicine, internal medicine, oncology, or pathology and whose license and certification were not on inactive status at the time the report was made stating that:
(A)  the exposed person has been diagnosed with malignant mesothelioma or other malignant asbestos-related cancer; and
(B)  to a reasonable degree of medical probability, exposure to asbestos was a cause of the diagnosed mesothelioma or other cancer in the exposed person; or
(2)  a report by a physician who is board certified in pulmonary medicine, internal medicine, or occupational medicine and whose license and certification were not on inactive status at the time the report was made that:
(A)  verifies that the physician or a medical professional employed by and under the direct supervision and control of the physician:
(i)  performed a physical examination of the exposed person, or if the exposed person is deceased, reviewed available records relating to the exposed person's medical condition;
(ii)  took a detailed occupational and exposure history from the exposed person or, if the exposed person is deceased, from a person knowledgeable about the alleged exposure or exposures that form the basis of the action; and
(iii)  took a detailed medical and smoking history that includes a thorough review of the exposed person's past and present medical problems and their most probable cause;
(B)  sets out the details of the exposed person's occupational, exposure, medical, and smoking history and verifies that at least 10 years have elapsed between the exposed person's first exposure to asbestos and the date of diagnosis;
(C)  verifies that the exposed person has:
(i)  a quality 1 or 2 chest x-ray that has been read by a certified B-reader according to the ILO system of classification as showing:
(a)  bilateral small irregular opacities (s, t, or u) with a profusion grading of 1/1 or higher, for an action filed on or after May 1, 2005;
(b)  bilateral small irregular opacities (s, t, or u) with a profusion grading of 1/0 or higher, for an action filed before May 1, 2005; or
(c)  bilateral diffuse pleural thickening graded b2 or higher including blunting of the costophrenic angle; or
(ii)  pathological asbestosis graded 1(B) or higher under the criteria published in "Asbestos-Associated Diseases," 106 Archives of Pathology and Laboratory Medicine 11, Appendix 3 (October 8, 1982);
(D)  verifies that the exposed person has asbestos-related pulmonary impairment as demonstrated by pulmonary function testing showing:
(i)  forced vital capacity below the lower limit of normal or below 80 percent of predicted and FEV1/FVC ratio (using actual values) at or above the lower limit of normal or at or above 65 percent; or
(ii)  total lung capacity, by plethysmography or timed gas dilution, below the lower limit of normal or below 80 percent of predicted;
(E)  verifies that the physician has concluded that the exposed person's medical findings and impairment were not more probably the result of causes other than asbestos exposure revealed by the exposed person's occupational, exposure, medical, and smoking history; and
(F)  is accompanied by copies of all ILO classifications, pulmonary function tests, including printouts of all data, flow volume loops, and other information demonstrating compliance with the equipment, quality, interpretation, and reporting standards set out in this chapter, lung volume tests, diagnostic imaging of the chest, pathology reports, or other testing reviewed by the physician in reaching the physician's conclusions.
(b)  The detailed occupational and exposure history required by Subsection (a)(2)(A)(ii) must describe:
(1)  the exposed person's principal employments and state whether the exposed person was exposed to airborne contaminants, including asbestos fibers and other dusts that can cause pulmonary impairment; and
(2)  the nature, duration, and frequency of the exposed person's exposure to airborne contaminants, including asbestos fibers and other dusts that can cause pulmonary impairment.
(c)  If a claimant's pulmonary function test results do not meet the requirements of Subsection (a)(2)(D)(i) or (ii), the claimant may serve on each defendant a report by a physician who is board certified in pulmonary medicine, internal medicine, or occupational medicine and whose license and certification were not on inactive status at the time the report was made that:
(1)  verifies that the physician has a physician-patient relationship with the exposed person;
(2)  verifies that the exposed person has a quality 1 or 2 chest x-ray that has been read by a certified B-reader according to the ILO system of classification as showing bilateral small irregular opacities (s, t, or u) with a profusion grading of 2/1 or higher;
(3)  verifies that the exposed person has restrictive impairment from asbestosis and includes the specific pulmonary function test findings on which the physician relies to establish that the exposed person has restrictive impairment;
(4)  verifies that the physician has concluded that the exposed person's medical findings and impairment were not more probably the result of causes other than asbestos exposure revealed by the exposed person's occupational, exposure, medical, and smoking history; and
(5)  is accompanied by copies of all ILO classifications, pulmonary function tests, including printouts of all data, flow volume loops, and other information demonstrating compliance with the equipment, quality, interpretation, and reporting standards set out in this chapter, lung volume tests, diagnostic imaging of the chest, pathology reports, or other testing reviewed by the physician in reaching the physician's conclusions.
(d)  If a claimant's radiologic findings do not meet the requirements of Subsection (a)(2)(C)(i), the claimant may serve on each defendant a report by a physician who is board certified in pulmonary medicine, internal medicine, or occupational medicine and whose license and certification were not on inactive status at the time the report was made that:
(1)  verifies that the physician has a physician-patient relationship with the exposed person;
(2)  verifies that the exposed person has asbestos-related pulmonary impairment as demonstrated by pulmonary function testing showing:
(A)  either:
(i)  forced vital capacity below the lower limit of normal or below 80 percent of predicted and total lung capacity, by plethysmography, below the lower limit of normal or below 80 percent of predicted; or
(ii)  forced vital capacity below the lower limit of normal or below 80 percent of predicted and FEV1/FVC ratio (using actual values) at or above the lower limit of normal or at or above 65 percent; and
(B)  diffusing capacity of carbon monoxide below the lower limit of normal or below 80 percent of predicted;
(3)  verifies that the exposed person has a computed tomography scan or high-resolution computed tomography scan showing either bilateral pleural disease or bilateral parenchymal disease consistent with asbestos exposure;
(4)  verifies that the physician has concluded that the exposed person's medical findings and impairment were not more probably the result of causes other than asbestos exposure as revealed by the exposed person's occupational, exposure, medical, and smoking history; and
(5)  is accompanied by copies of all computed tomography scans, ILO classifications, pulmonary function tests, including printouts of all data, flow volume loops, and other information demonstrating compliance with the equipment, quality, interpretation, and reporting standards set out in this chapter, lung volume tests, diagnostic imaging of the chest, pathology reports, or other testing reviewed by the physician in reaching the physician's conclusions.
Added by Acts 2005, 79th Leg., Ch. 97 (S.B. 15), Sec. 2, eff. September 1, 2005.