§ 88.002.Application

Title 4. Liability in Tort · Chapter 88. Health Care Liability · Last amended 2005 · Last verified August 29, 2026

In one sentenceSection 88.002 imposes a duty of ordinary care on managed care entities making health care treatment decisions, makes them liable for their agents' decisions, and bars indemnity clauses and retaliation against advocating physicians.

Full Text of § 88.002

Text sizeJump to: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k)

(a)A health insurance carrier, health maintenance organization, or other managed care entity for a health care plan has the duty to exercise ordinary care when making health care treatment decisions and is liable for damages for harm to an insured or enrollee proximately caused by its failure to exercise such ordinary care.

(b)A health insurance carrier, health maintenance organization, or other managed care entity for a health care plan is also liable for damages for harm to an insured or enrollee proximately caused by the health care treatment decisions made by its:

(1)employees;

(2)agents;

(3)ostensible agents; or

(4)representatives who are acting on its behalf and over whom it has the right to exercise influence or control or has actually exercised influence or control which result in the failure to exercise ordinary care.

(c)It shall be a defense to any action asserted against a health insurance carrier, health maintenance organization, or other managed care entity for a health care plan that:

(1)neither the health insurance carrier, health maintenance organization, or other managed care entity, nor any employee, agent, ostensible agent, or representative for whose conduct such health insurance carrier, health maintenance organization, or other managed care entity is liable under Subsection (b), controlled, influenced, or participated in the health care treatment decision; and

(2)the health insurance carrier, health maintenance organization, or other managed care entity did not deny or delay payment for any treatment prescribed or recommended by a provider to the insured or enrollee.

(d)The standards in Subsections (a) and (b) create no obligation on the part of the health insurance carrier, health maintenance organization, or other managed care entity to provide to an insured or enrollee treatment which is not covered by the health care plan of the entity.

(e)This chapter does not create any liability on the part of an employer, an employer group purchasing organization, or a pharmacy licensed by the State Board of Pharmacy that purchases coverage or assumes risk on behalf of its employees.

(f)A health insurance carrier, health maintenance organization, or managed care entity may not remove a physician or health care provider from its plan or refuse to renew the physician or health care provider with its plan for advocating on behalf of an enrollee for appropriate and medically necessary health care for the enrollee.

(g)A health insurance carrier, health maintenance organization, or other managed care entity may not enter into a contract with a physician, hospital, or other health care provider or pharmaceutical company which includes an indemnification or hold harmless clause for the acts or conduct of the health insurance carrier, health maintenance organization, or other managed care entity. Any such indemnification or hold harmless clause in an existing contract is hereby declared void.

(h)Nothing in any law of this state prohibiting a health insurance carrier, health maintenance organization, or other managed care entity from practicing medicine or being licensed to practice medicine may be asserted as a defense by such health insurance carrier, health maintenance organization, or other managed care entity in an action brought against it pursuant to this section or any other law.

(i)In an action against a health insurance carrier, health maintenance organization, or managed care entity, a finding that a physician or other health care provider is an employee, agent, ostensible agent, or representative of such health insurance carrier, health maintenance organization, or managed care entity shall not be based solely on proof that such person's name appears in a listing of approved physicians or health care providers made available to insureds or enrollees under a health care plan.

(j)This chapter does not apply to workers' compensation insurance coverage as defined in Section 401.011, Labor Code.

(k)An enrollee who files an action under this chapter shall comply with the requirements of Section 74.351 as it relates to expert reports.

End

Plain-English Summary

The operative section, and it does considerably more than create a cause of action.

A carrier, HMO, or managed care entity has the duty to exercise ordinary care when making health care treatment decisions and is liable for damages for harm proximately caused by its failure to do so.

Subsection (b) extends liability to decisions by its employees, agents, ostensible agents, and representatives acting on its behalf "over whom it has the right to exercise influence or control or has actually exercised it".

Subsection (c) supplies the defence, and it has two elements. That neither the entity nor anyone it is responsible for controlled, influenced, or participated in the treatment decision; and that the entity did not deny or delay payment for any treatment prescribed or recommended.

Both are required, which is the point — an entity cannot claim it stayed out of the decision if it withheld payment for the treatment.

Three further subsections regulate conduct rather than liability. An entity may not remove or refuse to renew a physician for advocating on behalf of an enrollee for appropriate and medically necessary care. It may not enter into an indemnification or hold harmless clause with a provider for its own acts. And no law prohibiting it from practising medicine may be asserted as a defence to an action under this section.

Subsection (k) imports the medical liability expert report: an enrollee filing under this chapter shall comply with Section 74.351 — the 120-day report with mandatory dismissal for failure.

Frequently Asked Questions

Can I sue my HMO in Texas?

Where the chapter applies, yes. A carrier, HMO, or managed care entity has a duty of ordinary care in making health care treatment decisions and is liable for harm proximately caused by failing to exercise it.

What is the entity's defence?

Both that it and those it is responsible for did not control, influence, or participate in the treatment decision, and that it did not deny or delay payment for the treatment prescribed.

Can a plan drop a doctor for advocating for me?

No. An entity may not remove or refuse to renew a physician or provider for advocating on behalf of an enrollee for appropriate and medically necessary care.

Do I need an expert report?

Yes. An enrollee filing under this chapter must comply with Section 74.351.

Amendment History

Added by Acts 1997, 75th Leg., ch. 163, Sec. 1, eff. Sept. 1, 1997.
Amended by:
Acts 2005, 79th Leg., Ch. 134 (H.B. 737), Sec. 2, eff. September 1, 2005.

Source & verification. Section text is reproduced verbatim from Texas Legislature Online (statutes.capitol.texas.gov). Enacted by the Texas Legislature. Current through May 14, 2026. Last verified August 29, 2026. · Official source