Texas PJC Malpractice 2022

PJC 51.16

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

PJC 51.16

Express Warranty—Medical

QUESTION ______ Did Dr. Davis promise Paul Payne in writing to cure Paul Payne’s arthritis ? Answer “Yes” or “No.” Answer: _______________ If you answered the above question “Yes,” then answer the following ques tion. Otherwise, do not answer the following question. QUESTION ______ Was Dr. Davis ’s failure, if any, to cure Paul Payne’s arthritis a proximate cause of the [ injury ] [ occurrence ]? Answer “Yes” or “No.” Answer: _______________ COMMENT Use of “injury” or “occurrence.” See PJC 51.1. When to use. PJC 51.16 may be used to submit a cause of action for breach of an express warranty. See Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). Both the above statutory provisions apply to causes of action based on “health care liability claim[s],” whether sounding “in tort or contract ” (emphasis added); see also Tex. Bus. & Com. Code §26.01(b)(8) (agreements not enforceable unless in writing include agreements relating to medical care). Omit first question if no dispute. If there is no dispute about whether there was a promise in writing, the first question should not be submitted. Particular warranty. Appropriate words describing the particular promise or warranty claimed to be breached should be substituted for the phrase to cure Paul Payne’s arthritis . Caveat. The Texas Business and Commerce Code requires a finding of “proxi mate cause” rather than “producing cause” for consequential damages (injury to per son or property) arising from any breach of warranty. Tex. Bus. & Com. Code § 2.715(b)(2); see Signal Oil & Gas Co. v. Universal Oil Products , 572 S.W.2d 320, 329 (Tex. 1978). The same result is obtained for breach of express warranty under Tex. UCC § 2.313. General Supply & Equipment Co. v. Phillips , 490 S.W.2d 913, 917 (Tex.

90