Texas PJC Malpractice 2022

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

PJC 51.19

PJC 51.19

Malicious Credentialing Claim against a Hospital

QUESTION ______ Do you find that Dixon Hospital acted with malice in the granting or retain ing of Dr. Davis ’s active surgical credentials and that such conduct was a prox imate cause of the [ injury ] [ occurrence ] in question? “Malice” means a specific intent by Dixon Hospital to cause substantial injury or harm to Paul Payne . Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 51.19 should be used if the plaintiff seeks recovery for injuries resulting from the malicious credentialing of a physician. A hospital’s alleged mali cious credentialing can be the proximate cause of the plaintiff’s injuries only if the jury finds that the physician was negligent and the negligence injured the plaintiff. See Garland Community Hospital v. Rose , 156 S.W.3d 541, 546 (Tex. 2004). 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. Source of definitions. The definition of “malice” comes from Tex. Civ. Prac. & Rem. Code § 41.001(7). Proximate cause. PJC 51.19 is designed to be used with the definition of “proxi mate cause” in PJC 50.2. If the evidence raises “new and independent cause,” the defi nitions in PJC 50.4 should be used in lieu of the definition of “proximate cause” in PJC 50.2. Exemplary damages. Malice must be proved by clear and convincing evidence to recover exemplary damages. Tex. Civ. Prac. & Rem. Code § 41.003(a)–(c); Romero v. KPH Consolidation, Inc. , 166 S.W.3d 212, 220 (Tex. 2005). However, there is no requirement that malice be proved by more than a preponderance of the evidence to recover actual damages. Romero , 166 S.W.3d at 220.

99