Texas PJC Malpractice 2022

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

PJC 51.18

defined in Tex. Civ. Prac. & Rem. Code § 74.001(a)(7). For cases to which the “Good Samaritan” statute may apply, Tex. Civ. Prac. & Rem. Code §§74.151–.152, see PJC 51.18A. PJC 51.18B is not appropriate when the care rendered in the hospital emer gency department, in an obstetrical unit, or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department was not “emergency medical care.” In those situations, PJC 51.3 should be used. PJC 51.18B should be used in actions filed on or after September 1, 2019, if the evi dence shows that a willful and wanton negligence standard may apply whether or not an ordinary negligence standard also applies. See Tex. Civ. Prac. & Rem. Code §§74.001(a)(7), 74.151–.154. For those cases filed after September 1, 2003, and before September 1, 2019, use the following definition of emergency medical care in Question 1: “Emergency medical care” means bona fide emergency services provided after the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or seri ous dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is sta bilized and is capable of receiving medical treatment as a nonemer gency patient or that is unrelated to the original medical emergency. See Acts 2003, 78th Leg., R.S., ch. 204, § 10.01 (H.B. 4), eff. Sept. 1, 2003. Gross negligence. If gross negligence will be charged to the jury, it must be ensured, through predicate instructions or separate questions, that the jury answers any gross negligence question only as to those questions for which the jury unanimously answered “Yes” regarding negligence or willful and wanton negligence. See Tex. Civ. Prac. & Rem. Code § 41.003(d). Use of “injury” or “occurrence.” See PJC 51.1. Substitution of “death.” Under the Texas wrongful death statute, a defendant’s liability may be predicated only on “an injury that causes an individual’s death.” Tex. Civ. Prac. & Rem. Code §71.002(b); see also Kramer v. Lewisville Memorial Hospi tal , 858 S.W.2d 397, 404 (Tex. 1993). Therefore, in a case involving a claim for wrongful death, the word “death” may be substituted for the word “injury” in the neg ligence question(s). Source of definition. Willful and wanton negligence found in Tex. Civ. Prac. & Rem. Code §74.153 means gross negligence for trial purposes. Campbell v. Pompa , 585 S.W.3d 561, 569 (Tex. App.—Fort Worth 2019, pet. denied); see also Martinez Gonzalez v. EC Lewisville, LLC , No. 02-17-00122-CV, 2018 WL 1192242, at *6–7

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