PJC Malpractice 2024

PJC 82.3

S URVIVAL D AMAGES

Madalin , 600 S.W.2d 773 (Tex. 1980); Missouri Pacific Railroad v. Dawson , 662 S.W.2d 740 (Tex. App.—Corpus Christi–Edinburg 1983, writ ref’d n.r.e.); Mitchell v. Akers , 401 S.W.2d 907 (Tex. App.—Dallas 1966, writ ref’d n.r.e.). Elements may be included or omitted. PJC 82.3 is intended to include all ele ments of damages that accrued to the decedent from the time of injury until death. If there is evidence of any other element, it should be included, and if there is no evi dence of any stated element, it should be omitted. Caveat on submitting physical pain and mental anguish together. To avoid concerns about improperly mixing valid and invalid elements of damages ( see Harris County v. Smith , 96 S.W.3d 230, 234 (Tex. 2002)), when the sufficiency of the evi dence to support either physical pain or mental anguish is in question, separate sub mission of those items may avoid the need for a new trial if a sufficiency challenge is upheld on appeal. See Katy Springs & Manufacturing, Inc. v. Favalora , 476 S.W.3d 579, 597–99, 610–11 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (although challenge to separate submission was waived, separate awards allowed modification of judgment, rather than remand for new trial, where evidence of future mental anguish was legally insufficient). The Texas Supreme Court has yet to decide the issue. Nature of medical, funeral, and burial claims allowed. Damages claimed for the decedent’s medical, funeral, and burial expenses are properly the subject of a sur vival action brought by the personal representative under Tex. Civ. Prac. & Rem. Code § 71.021. See Austin Nursing Center, Inc v. Lovato , 171 S.W.3d 845, 849–50 (Tex. 2005); Tarrant County Hospital District v. Jones , 664 S.W.2d 191 (Tex. App.—Fort Worth 1984, no writ). However, these damages have also been permitted in a suit for wrongful death under Tex. Civ. Prac. & Rem. Code §§71.001–.012, provided that double recovery is not allowed. Landers , 369 S.W.2d at 35; Murray v. Templeton , 576 S.W.2d 138 (Tex. App.—Texarkana 1978, no writ). In such instances, element 2 should be reworded to cover only those expenses actually paid or incurred. See Tex. Civ. Prac. & Rem. Code §41.0105. If expenses are contested, the reasonableness of the medical, funeral, and burial expenses must be proved. Folsom Investments, Inc. v. Troutz , 632 S.W.2d 872 (Tex. App.—Fort Worth 1982, writ ref’d n.r.e.). Also, funeral and burial expenses must be “reasonably suitable” to the decedent’s “station in life.” See Texas & New Orleans Railroad v. Landrum , 264 S.W.2d 530, 539 (Tex. App.— Beaumont 1954, writ ref’d n.r.e.) . Medical care expenses. Recovery of medical or health care expenses is governed by section 41.0105 of the Texas Civil Practice and Remedies Code. This statute pro vides, “In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.” Tex. Civ. Prac. & Rem. Code §41.0105. See also Haygood v. De Escabedo , 356 S.W.3d 390 (Tex. 2011) (interpreting section 41.0105).

368