PJC Malpractice 2024

P ERSONAL I NJURY D AMAGES

PJC 80.5

ments. Tex. Civ. Prac. & Rem. Code § 74.503. There are two conditions for the appli cation of this statute. The defendant must (1)request the periodic payment statute be applied; and (2)if not covered by adequate insurance, provide evidence of financial responsibility or security in an amount adequate to assure full payment of damages awarded by the judgment. Tex. Civ. Prac. & Rem. Code §§ 74.503(a), 74.505(a), (b). If these conditions are met and the jury has awarded future damages covered by the statute for medical, health care, or custodial services, it is incumbent on the trial court to make a determination as to (1)the total amount of the judgment if no future pay ments were awarded; and (2)the amounts required by the claimant immediately in a lump sum payment to pay for items such as past damages awarded by the jury; future damages for elements other than medical, health care, or custodial services that the court has determined should not be paid in periodic payments; attorneys’ fees due under the agreement between the claimant and their attorney; reimbursement of case expenses; lien satisfaction; and amounts needed immediately for medical, health care, and custodial services from the date of judgment until the date the first periodic pay ment is to be made. The remaining amount of the judgment is to be allocated by the trial court to be paid in periodic payments over a period of time not to exceed the pro jected life expectancy of the person for whom the damages were awarded, and with consideration to the cost of the care reasonably expected to be required to treat the claimant going forward. Columbia Valley Healthcare System, L.P. v. A.M.A , 654 S.W.3d 135, 142–43 (Tex. 2022), reh’g denied (Nov. 18, 2022); Regent Care of San Antonio, LP v. Detrick , 610 S.W.3d 830, 836–37 (Tex. 2020). The periodic payment portion of the judgment must identify specifically (1)the recipient of the payments; (2)the dollar amount of the payments; (3)the interval between the payments; and (4)the number of payments or the period of time over which payments must be made. Tex. Civ. Prac. & Rem. Code §74.503(d); Columbia Valley , 654 S.W.3d at 143; Regent Care , 610 S.W.3d at 836–37. In addition, the judg ment must provide that, if the claimant should expire before all scheduled future pay ments have been made, the responsibility for payment from the date of death forward shall terminate, and any security provided by the defendant for those payments shall be released to the defendant. Tex. Civ. Prac. & Rem. Code §74.505(c). (However, with respect to any future payments awarded by the court for lost earnings only, on death of the claimant the court “may modify the judgment to award and apportion the 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

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