Texas PJC Malpractice 2022

PJC 51.17

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

PJC 51.17 Implied Warranty—Medical (Comment) The Supreme Court of Texas first recognized an implied warranty of good and workmanlike performance of services in Humber v. Morton , 426 S.W.2d 554 (Tex. 1968). See also Centex Homes v. Buecher , 95 S.W.3d 266 (Tex. 2002) (explaining war ranty created in Humber ). The court has also recognized an implied warranty of good and workmanlike performance of services rendered in connection with the repair or modification of existing tangible goods. Melody Home Manufacturing Co. v. Barnes , 741 S.W.2d 349 (Tex. 1987); see also Buecher , 95 S.W.3d at 270; Archibald v. Act III Arabians , 755 S.W.2d 84 (Tex. 1988). In Dennis v. Allison , 698 S.W.2d 94 (Tex. 1985), however, the court held that there is no implied warranty that a psychiatrist will follow the canons of ethics of his profession. These decisions leave a number of ques tions regarding implied warranties for service providers unanswered. An implied warranty for professional health care services has not been recognized by the supreme court. Unless Dennis v. Allison is expressly overruled or distinguished by the court, the submission of questions pertaining to implied warranties of profes sional-service providers is not recommended. See also Tex. Civ. Prac. & Rem. Code §74.004 (inapplicability of Deceptive Trade Practices—Consumer Protection Act to claims grounded in negligence); Tex. Bus. & Com. Code § 26.01 (statute of frauds).

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