PJC Malpractice 2024

P ERSONAL I NJURY D AMAGES

PJC 80.3

unpaid balance for future lost earnings in an appropriate manner.” Tex. Civ. Prac. & Rem. Code § 74.506(c).) Because it is not an affirmative defense, it is not necessary for a defendant to plead for periodic payments. Virlar v. Puente , 664 S.W.3d 53, 62 (Tex. 2023), reh’g denied (May 5, 2023). The statute requires that a defendant request periodic payments, but it is silent as to when that request must be made. However, the periodic payment provi sions are not triggered until there is a verdict in which the present value of the award of future damages equals or exceeds $100,000. Accordingly, a request by a defendant for periodic payments is considered timely even if not made until after verdict. Tex. Civ. Prac. & Rem. Code §74.502; Virlar , 664 S.W.3d at 62–63. The trial court has great discretion in determining how any periodic payments should be structured. How ever, the decision of the court must be based on evidence and cannot contradict the verdict of the jury. Virlar , 664 S.W.3d at 64. The burden is on the defendant requesting periodic payments to provide evidence sufficient for the court to make findings to satisfy the statute. The evidence considered by the court must include the evidence admitted at trial, but the court also has discre tion to receive evidence submitted on a post-verdict basis to allow the court to make these determinations. Virlar , 664 S.W.3d at 64–65; Columbia Valley , 654 S.W.3d at 143–44; Regent Care , 610 S.W.3d at 837. Cautious counsel may want to present any non-jury evidence they want the court to consider in that regard before the close of evidence or seek a ruling from the trial court that evidence in that regard will be sub mitted on a post-verdict basis if made necessary by the findings of the jury with respect to future damages. Although the life expectancy of the claimant is a factor the court must consider in allocating how future damages are to be paid, it is not necessary for the court to submit a question to the jury as to the probable life expectancy of the claimant. However, the trial court is not precluded from submitting an advisory question to the jury to assist the court in making that determination in the judgment or post-judgment stages. Columbia Valley , 654 S.W.3d at 142. With no current case guidance on how such an advisory issue might be worded, the Committee makes no recommendation at this time in that regard. Periodic payments. Subchapter K of the Texas Medical Liability Act requires periodic payments under certain circumstances. See Tex. Civ. Prac. & Rem. Code § 74.501. For further discussion, see PJC 80.5. Existence of injury. Under Texas & Pacific Railway v. Van Zandt , 317 S.W.2d 528 (Tex. 1958), a separate question was required on the existence of injury if a genu ine dispute was raised by the evidence. Now, given the preference for broad-form sub mission, Lemos v. Montez , 680 S.W.2d 798 (Tex. 1984), the Committee believes that a separate question is no longer necessary. The issue, if raised, would be subsumed under the “occurrence” version of the damages question, which includes the phrase “if

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