Texas PJC Malpractice 2022

M EDICAL M ALPRACTICE —T HEORIES OF D IRECT L IABILITY

PJC 51.10

Rem. Code §74.106(b). For submission of statutory informed consent under other states of the evidence, see PJC 51.11–51.14. Particular treatment or procedure. An appropriate term for the medical treat ment or surgical procedure in question should be substituted for the phrase the treat ment by radiation therapy . Person authorized to consent for patient. If appropriate, the phrase a person authorized to consent for Paul Payne may be substituted for Paul Payne . Proximate cause. The objective form of causation (reasonable-person standard) should be used to submit proximate cause. McKinley , 763 S.W.2d at 410; see also Melissinos v. Phamanivong , 823 S.W.2d 339 (Tex. App.—Texarkana 1991, writ denied), in which the court allowed the submission of proximate cause in a form dif ferent from that set out in PJC 51.10. As part of proximate cause, the patient must establish that he was injured by the occurrence of the risk of which he was not informed. Greene v. Thiet , 846 S.W.2d 26, 31 (Tex. App.—San Antonio 1992, writ denied). Medical Liability Act. The Medical Liability Act applies to causes of action based on “health care liability claims.” See Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). Under the Act, the Texas Medical Disclosure Panel has the duty to prepare lists of medical treatments and surgical procedures that do and do not require disclosure of risks and hazards to the patient. See Tex. Civ. Prac. & Rem. Code § 74.103. These lists and the degree and form of disclosure required are found at 25 Tex. Admin. Code §§ 601.1–.9. If the medical care or surgical procedure is on list A, the health care provider is required to disclose such risks and hazards. Tex. Civ. Prac. & Rem. Code §74.104. If disclosure is made as provided in section 74.105, the provider shall be considered to have complied with section 74.104. Duty of disclosure. The duty of disclosure for procedures not on list A or B is to disclose all risks and hazards that could influence a reasonable person in making a decision to consent to the procedure. Peterson , 652 S.W.2d at 931; see also Hartfiel v. Owen , 618 S.W.2d 902, 905 (Tex. App.—El Paso 1981, writ ref’d n.r.e.) (plaintiff must prove injury resulted from undisclosed risk). The medical condition complained of must be shown by expert testimony to be a risk inherent in the medical procedure performed. Peterson , 652 S.W.2d at 931. No-disclosure list. If the evidence shows that the care or procedure involved is on the list for which no disclosure is required under 74.103, the Committee believes that no question on informed consent should be submitted. No panel determination on procedure. For treatments or procedures on which the panel has made no determination regarding a duty of disclosure, section 74.106(b)

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