Texas PJC Malpractice 2022

About This Product4
Copyright Information4
Dedication5
Committee 2020–20236
State Bar of Texas Staff8
Committee 1989–20209
Contents13
Preface27
Preface to the 2022 Edition28
Changes in the 2022 Edition29
How to Download This Book581
License and Limited Warranty584
Introduction31
INDEXES548
Statutes and Rules Cited548
Texas Business & Commerce Code548
Texas Business Organizations Code548
Texas Civil Practice & Remedies Code548
Texas Family Code550
Texas Finance Code550
Texas Health & Safety Code550
Texas Occupations Code550
Texas Parks & Wildlife Code550
Texas Penal Code550
Texas Tax Code552
Texas Administrative Code552
Texas Rules of Civil Procedure552
Texas Rules of Evidence552
Texas Disciplinary Rules of Professional Conduct552
United States Code553
Miscellaneous553
Cases Cited554
A554
B554
C555
D555
E556
F556
G556
H557
I558
J558
K558
L558
M558
N559
O559
P559
Q559
R560
S560
T560
U561
V561
W561
Y562
Subject Index563
A563
B564
C565
D566
E568
F570
G570
H571
I571
J572
K572
L572
M573
N574
O575
P575
R578
S578
T579
U580
V580
W580
Chapter 40 Admonitory Instructions35
PJC 40.1 Instructions to Jury Panel before Voir Dire Examination36
PJC 40.2 Instructions to Jury after Jury Selection38
PJC 40.3 Charge of the Court42
PJC 40.3A Charge of the Court—Twelve-Member Jury42
PJC 40.3B Charge of the Court—Six-Member Jury46
PJC 40.4 Additional Instruction for Bifurcated Trial53
PJC 40.5 Instructions to Jury after Verdict55
PJC 40.6 Instruction to Jury If Permitted to Separate56
PJC 40.7 Instruction If Jury Disagrees about Testimony57
PJC 40.8 Circumstantial Evidence (Optional)58
PJC 40.9 Instructions to Deadlocked Jury59
PJC 40.10 Privilege—Generally No Inference60
PJC 40.11 Fifth Amendment Privilege—Adverse Inference May Be Considered61
PJC 40.12 Parallel Theories on Damages62
PJC 40.13 Instruction on Spoliation63
Chapter 50 Medical Malpractice—Definitions, Instructions, and Preliminary Questions66
PJC 50.1 Physician’s Degree of Care; Proximate Cause67
PJC 50.2 Hospital’s Degree of Care; Proximate Cause71
PJC 50.3 Health Care Personnel’s Degree of Care; Proximate Cause77
PJC 50.4 New and Independent Cause—Medical80
PJC 50.5 Sole Proximate Cause—Medical82
PJC 50.6 Physician-Patient Relationship84
PJC 50.7 Evidence of Bad Result86
PJC 50.8 Open Courts Challenge87
Chapter 51 Medical Malpractice—Theories of Direct Liability90
PJC 51.1 Use of “Injury” or “Occurrence” (Comment)92
PJC 51.2 Submission of Settling Persons, Contribution Defendants, and Responsible Third Parties (Comment)93
PJC 51.3 Negligence of Physician, Hospital, or Other Health Care Provider94
PJC 51.4 Proportionate Responsibility—Medical97
PJC 51.5 Proportionate Responsibility If Contribution Defendant Is Joined—Medical99
PJC 51.6 Proportionate Responsibility—Medical—Derivative Claimant101
PJC 51.7 Abandonment of Patient by Physician103
PJC 51.8 Res Ipsa Loquitur—Medical (Comment)105
PJC 51.9 Informed Consent (Common Law)107
PJC 51.10 Informed Consent (Statutory)—Procedure Not on List A or B—No Emergency or Other Medically Feasible Reason for Nondisclosure—Disclosure in Issue109
PJC 51.11 Informed Consent (Statutory)—Procedure on List A—No Emergency or Other Medically Feasible Reason for Nondisclosure—No Disclosure112
PJC 51.12 Informed Consent (Statutory)—Procedure on List A—No Emergency or Other Medically Feasible Reason for Nondisclosure—Disclosure Not in Statutory Form114
PJC 51.13 Informed Consent (Statutory)—Procedure on List A—No Disclosure—Emergency or Other Medically Feasible Reason for Nondisclosure in Issue116
PJC 51.14 Informed Consent (Statutory)—Procedure on List A—Validity of Disclosure Instrument in Issue118
PJC 51.15 Battery—Medical119
PJC 51.16 Express Warranty—Medical121
PJC 51.17 Implied Warranty—Medical (Comment)123
PJC 51.18 Emergency Care and Emergency Medical Care124
PJC 51.18A Emergency Care (Good Samaritan)124
PJC 51.18B Emergency Medical Care126
PJC 51.19 Malicious Credentialing Claim against a Hospital130
PJC 51.20 The Emergency Medical Treatment and Active Labor Act (EMTALA)—Medical Screening Examinations and/or Stabilization before Transfer When a Patient Comes to a Hospital with an Emergency Medical Condition131
PJC 51.21 Liability of Physicians, Health Care Providers, and First Responders During Pandemic (Comment)137
Chapter 52 Medical Malpractice—Theories of Vicarious Liability138
PJC 52.1 Borrowed Employee—Medical—Liability of Borrowing Employer139
PJC 52.2 Borrowed Employee—Medical—Lending Employer’s Rebuttal Instruction140
PJC 52.3 Borrowed Employee—Medical—Disjunctive Submission of Lending or Borrowing Employer141
PJC 52.4 Ostensible Agency—Question and Instruction142
Chapter 53 Medical Malpractice—Defenses144
Chapter 60 Nonmedical Professional Malpractice—Definitions and Instructions146
PJC 60.1 Nonmedical Professional’s Degree of Care; Proximate Cause147
PJC 60.2 New and Independent Cause—Nonmedical Professional152
PJC 60.3 Sole Proximate Cause—Nonmedical Professional154
Chapter 61 Nonmedical Professional Malpractice—Theories of Recovery156
PJC 61.1 Use of “Injury” or “Occurrence” (Comment)157
PJC 61.2 Submission of Settling Persons, Contribution Defendants, and Responsible Third Parties (Comment)158
PJC 61.3 Nonmedical Professional Relationship—Existence in Dispute159
PJC 61.4 Question and Instruction on Negligent Misrepresentation161
PJC 61.5 Negligence of Nonmedical Professional163
PJC 61.6 Breach of Fiduciary Duty of Nonmedical Professional (Comment)166
PJC 61.7 Proportionate Responsibility—Nonmedical Professional168
PJC 61.8 Proportionate Responsibility If Contribution Defendant Is Joined—Nonmedical Professional170
PJC 61.9 Proportionate Responsibility—Nonmedical Professional—Derivative Claimant172
PJC 61.10 Liability of Attorneys under Deceptive Trade Practices Act (Comment)174
PJC 61.11 Attorney-Client Relationship—Existence in Dispute175
PJC 61.12 Breach of Fiduciary Duty against Attorney in His Role as Attorney—Burden on Attorney177
PJC 61.13 Question on Discovery Rule—Attorney Malpractice, Breach of Fiduciary Duty, or Fraud182
Chapter 65 Premises Liability—Definitions and Instructions185
PJC 65.1 Application—Distinction between Premises Defect, Negligent Activity, and Negligence of Nonsubscribing Employer (Comment)186
PJC 65.2 Negligence and Ordinary Care of Plaintiffs or of Defendants Other Than Owners or Occupiers of Premises188
PJC 65.3 Child’s Degree of Care189
PJC 65.4 Proximate Cause—Premises191
PJC 65.5 New and Independent Cause—Premises193
PJC 65.6 Sole Proximate Cause—Premises195
PJC 65.7 Unavoidable Accident197
PJC 65.8 Act of God198
PJC 65.9 Emergency199
Chapter 66 Premises Liability—Theories of Recovery200
PJC 66.1 Use of “Injury” or “Occurrence” (Comment)201
PJC 66.2 Submission of Settling Persons, Contribution Defendants, and Responsible Third Parties (Comment)202
PJC 66.3 Premises Liability Based on Negligent Activity or Premises Defect—Right to Control203
PJC 66.4 Premises Liability—Plaintiff Is Invitee205
PJC 66.5 Premises Liability—Plaintiff Is Licensee209
PJC 66.6 Premises Liability—Plaintiff’s Status in Dispute212
PJC 66.7 Premises Liability—Disjunctive Submission of Invitee-Licensee for Alternate Theories of Recovery214
PJC 66.8 Premises Liability—Plaintiff-Licensee Injured by Gross Negligence216
PJC 66.9 Premises Liability—Plaintiff Is Trespasser218
PJC 66.10 Premises Liability—Attractive Nuisance221
PJC 66.11 Premises Liability—Proportionate Responsibility224
PJC 66.12 Premises Liability—Proportionate Responsibility If Contribution Defendant Is Joined226
PJC 66.13 Premises Liability—Proportionate Responsibility—Derivative Claimant228
PJC 66.14 Property Owner’s Liability to Contractors, Subcontractors, or Their Employees (Tex. Civ. Prac. & Rem. Code Ch. 95)230
Chapter 70 Products Liability—Definitions, Instructions, and Preliminary Questions233
PJC 70.1 Producing Cause—Products Liability234
PJC 70.2 Proximate Cause—Breach of Warranty236
PJC 70.3 New and Independent Cause—Products Liability238
PJC 70.4 Sole Cause—Products Liability240
PJC 70.5 Seller of a Product241
PJC 70.6 Substantial Change in Condition or Subsequent Alteration by Affirmative Conduct—Instruction242
PJC 70.7 Statute of Repose (Comment)243
Chapter 71 Products Liability—Theories of Recovery244
PJC 71.1 Use of “Injury” or “Occurrence” (Comment)245
PJC 71.2 Submission of Settling Persons, Contribution Defendants, and Responsible Third Parties (Comment)246
PJC 71.3 Manufacturing Defect247
PJC 71.4 Design Defect249
PJC 71.5 Defect in Warnings or Instructions (Marketing Defect)252
PJC 71.6 Misrepresentation256
PJC 71.7 Negligence in Products Cases258
PJC 71.8 Negligent Undertaking262
PJC 71.9 Breach of Implied Warranty of Merchantability (Tex. UCC § 2.314(b)(3)) (Design Defect)264
PJC 71.10 Breach of Implied Warranty of Merchantability (Tex. UCC § 2.314(b)(1), (b)(2), (b)(4), (b)(6))267
PJC 71.11 Breach of Implied Warranty of Fitness for a Particular Purpose (Tex. UCC § 2.315)270
PJC 71.12 Breach of Express Warranty (Tex. UCC § 2.313)273
PJC 71.13 Products Liability—Proportionate Responsibility275
PJC 71.14 Products Liability—Proportionate Responsibility If Contribution Defendant Is Joined277
PJC 71.15 Products Liability—Proportionate Responsibility—Derivative Claimant279
Chapter 72 Joint and Several Liability281
PJC 72.1 Application—Joint and Several Liability as a Consequence of Certain Penal Code Violations (Comment)283
PJC 72.2 Question and Instructions—Murder as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(A))284
PJC 72.3 Question and Instructions—Capital Murder as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(B))286
PJC 72.4 Question and Instructions—Aggravated Kidnapping as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(C))289
PJC 72.5 Question and Instructions—Aggravated Assault as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(D))291
PJC 72.6 Question and Instructions—Sexual Assault as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(E))293
PJC 72.7 Question and Instructions—Aggravated Sexual Assault as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(F))295
PJC 72.8 Injury to Child, Elderly Individual, or Disabled Individual as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(G))298
PJC 72.8A Question and Instructions—Injury to a Childas a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(G))298
PJC 72.8B Question and Instructions—Injury to an Elderly Individual as a Ground for Joint and Several Liability(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(G))300
PJC 72.8C Question and Instructions—Injury to a Disabled Individual as a Ground for Joint and Several Liability(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(G))302
PJC 72.9 Question and Instructions—Forgery as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(H))305
PJC 72.10 Question and Instructions—Commercial Bribery as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(I))307
PJC 72.11 Question and Instructions—Misapplication of Fiduciary Property or Property of Financial Institution as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(J))309
PJC 72.12 Question and Instructions—Fraudulent Securing of Document Execution as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(K))311
PJC 72.13 Question and Instructions—Fraudulent Destruction, Removal, Alteration, or Concealment of Writing as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(L))313
PJC 72.14 Question and Instructions—Theft as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(M))315
PJC 72.15 Question and Instructions—Continuous Sexual Abuse of a Young Child or Disabled Individual as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(N))317
Chapter 80 Personal Injury Damages319
PJC 80.1 Personal Injury Damages—Instruction ConditioningDamages Questions on Liability321
PJC 80.2 Personal Injury Damages—Instruction on Whether Compensatory Damages Are Subject to Income Taxes322
PJC 80.3 Personal Injury Damages—Basic Question323
PJC 80.4 Personal Injury Damages—Injury of Spouse330
PJC 80.5 Personal Injury Damages—Injury of Minor Child333
PJC 80.6 Personal Injury Damages—Parents’ Loss of Services of Minor Child337
PJC 80.7 Personal Injury Damages—Instructions in Cases Involving Preexisting Injury or Condition or Subsequent Aggravation of Injury339
PJC 80.7A Personal Injury Damages—No Aggravation of Preexisting Symptomatic Condition or Injury and No Eggshell Plaintiff339
PJC 80.7B Personal Injury Damages—Aggravation of Symptomatic Preexisting Injury or Condition339
PJC 80.7C Personal Injury Damages—Asymptomatic Preexisting Injury or Condition—Eggshell Plaintiff339
PJC 80.7D Personal Injury Damages—Instructions in Cases Involving Subsequent Aggravation of Injury339
PJC 80.8 Personal Injury Damages—Exclusionary Instruction for Failure to Mitigate342
PJC 80.9 Personal Injury Damages—Cautionary Instruction Concerning Damages Limit in Health Care Suit344
PJC 80.10 Personal Injury Damages—Child’s Loss of Consortium—Question about Parent’s Injury345
PJC 80.11 Personal Injury Damages—Child’s Loss of Consortium—Damages Question346
PJC 80.12 Personal Injury Damages—Bystander Claim348
PJC 80.12A Bystander Status348
PJC 80.12B Bystander Claim—Damages Question348
Chapter 81 Wrongful Death Damages351
PJC 81.1 Wrongful Death Damages—Instruction Conditioning Damages Questions on Liability352
PJC 81.2 Wrongful Death Damages—Instruction on Whether Compensatory Damages Are Subject to Income Taxes353
PJC 81.3 Wrongful Death Damages—Claim of Surviving Spouse354
PJC 81.4 Wrongful Death Damages—Claim of Surviving Child360
PJC 81.5 Wrongful Death Damages—Claim of Surviving Parents of Minor Child364
PJC 81.6 Wrongful Death Damages—Claim of Surviving Parents of Adult Child367
PJC 81.7 Wrongful Death Damages—Cautionary Instruction Concerning Damages Limit in Health Care Suit370
Chapter 82 Survival Damages371
PJC 82.1 Survival Damages—Instruction Conditioning Damages Questions on Liability372
PJC 82.2 Survival Damages—Instruction on Whether Compensatory Damages Are Subject to Income Taxes373
PJC 82.3 Survival Damages—Compensatory Damages374
PJC 82.4 Survival Damages—Cautionary Instruction Concerning Damages Limit in Health Care Suit378
Chapter 83 Property Damages379
PJC 83.1 Property Damages—Instruction Conditioning Damages Questions on Liability380
PJC 83.2 Property Damages—Instruction on Whether Compensatory Damages Are Subject to Income Taxes381
PJC 83.3 Personal Property Damages—Total Destruction of Property382
PJC 83.4 Property Damages—Partial Destruction of Property385
PJC 83.4A Property Damages—Partial Destruction of Property—Difference in Market Value Only385
PJC 83.4B Property Damages—Partial Destruction of Property—Cost of Repairs385
Chapter 84 Economic Damages388
PJC 84.1 Economic Damages—Instruction Conditioning Damages Questions on Liability389
PJC 84.2 Economic Damages—Instruction on Whether Compensatory Damages Are Subject to Income Taxes390
PJC 84.3 Economic Damages—Nonmedical Professional Malpractice391
PJC 84.4 Sample Instructions for Economic Damages—Legal Malpractice393
PJC 84.5 Sample Instructions for Economic Damages—Accounting Malpractice396
PJC 84.6 Economic Damages—Question and Instruction on Monetary Loss Caused by Negligent Misrepresentation398
PJC 84.7 Attorney’s Fee Forfeiture (Comment)401
Chapter 85 Exemplary Damages403
PJC 85.1 Standard for Recovery of Exemplary Damages—Gross Negligence406
PJC 85.2 Imputing Gross Negligence to a Corporation408
PJC 85.3 Determining Amount of Exemplary Damages412
PJC 85.4 Apportioning Exemplary Damages415
PJC 85.5 Question and Instructions—Murder as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(1))416
PJC 85.6 Question and Instructions—Capital Murder as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(2))421
PJC 85.7 Question and Instructions—Aggravated Kidnapping as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(3))426
PJC 85.8 Question and Instructions—Aggravated Assault as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(4))430
PJC 85.9 Question and Instructions—Sexual Assault as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(5))434
PJC 85.10 Question and Instructions—Aggravated Sexual Assault as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(6))439
PJC 85.11 Injury to a Child, Elderly Individual, or Disabled Individual as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(7))446
PJC 85.11A Question and Instructions—Injury to a Child as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(7))446
PJC 85.11B Question and Instructions—Injury to an Elderly Individual as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(7))450
PJC 85.11C Question and Instructions—Injury to a Disabled Individual as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(7))454
PJC 85.12 Question and Instructions—Fraudulent Securing of Document Execution as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(11))459
PJC 85.13 Question and Instructions—Commercial Bribery as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(9))463
PJC 85.14 Question and Instructions—Misapplication of Fiduciary Property or Property of Financial Institution as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(10))467
PJC 85.15 Question and Instructions—Forgery as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(8))472
PJC 85.16 Question and Instructions—Fraudulent Destruction, Removal, or Concealment of Writing as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(12))476
PJC 85.17 Question and Instructions—Theft as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(13))480
PJC 85.18 Question and Instructions—Intoxication Assault as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(14))485
PJC 85.19 Question and Instructions—Intoxication Manslaughter as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(15))488
PJC 85.20 Question and Instructions—Continuous Sexual Abuse of Young Child or Disabled Individual as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(16))491
PJC 85.21 Question and Instructions—Trafficking of Persons as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(17))495
Chapter 86 Preservation of Charge Error501
PJC 86.1 Preservation of Charge Error (Comment)502
PJC 86.2 Broad-Form Issues and the Casteel Doctrine (Comment)506
Appendix507
Contents of Texas Pattern Jury Charges—General Negligence, Intentional Personal Torts & Workers’ Compensation (2022 Ed.)507
Contents of Texas Pattern Jury Charges—Business, Consumer, Insurance & Employment (2022 Ed.)518
Contents of Texas Pattern Jury Charges—Family & Probate (2022 Ed.)531
Contents of Texas Pattern Jury Charges—Oil & Gas (2022 Ed.)539

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