Texas PJC Malpractice 2022

PJC 60.1

N ONMEDICAL M ALPRACTICE —D EFINITIONS & I NSTRUCTIONS

1028–29 (Tex. 1940).] In other words, the producing cause inquiry is con ceptually identical to that of cause in fact. Transcontinental Insurance Co. v. Crump , 330 S.W.3d 211, 222–23 (Tex. 2010). See also Ford Motor Co. v. Ledesma , 242 S.W.3d 32, 46 (Tex. 2007). The “and without which cause” language of this instruction follows a long-accepted “strict but for” causation test applicable in most tort cases. See Rudes v. Gottschalk , 324 S.W.2d 201, 207 (Tex. 1959). However, the Texas Supreme Court has articulated an “aggregate-level” but-for causation test applicable to multiple negligent actors committing concurrent negligence “[i]f the negligent acts of each provider are so con current that they cannot be examined in isolation.” Pediatrics Cool Care v. Thompson , 649 S.W.3d 152, 159–61 (Tex. 2022) (citing Bustamante v. Ponte , 529 S.W.3d 447, 457 (Tex. 2017), and Bostic v. Georgia-Pacific Corp. , 439 S.W.3d 332, 344–45 (Tex. 2014)). Under such a circumstance, “the correct approach is to consider whether each provider’s individual negligence was a substantial factor in [causing the plaintiff’s injury] and whether the providers’ combined negligence was a but-for cause of [the plaintiff’s injury].” Pediatrics Cool Care , 649 S.W.3d at 160. To date, no Texas case analyzes the integration of an “aggregate-level” but-for causation test into the jury charge. When to use. These definitions should usually be included in the court’s charge in a nonmedical professional malpractice case. If the evidence raises “new and inde pendent cause,” the definitions in PJC 60.2 should be used in lieu of the definition of “proximate cause” above. Substitute particular professional. A term describing the professional involved (e.g., attorney , architect ) should be substituted as appropriate for the word accountant . Attorneys. Standard of care. The standard of care for an attorney is what a reasonable and prudent attorney would have done under similar circumstances. Rogers , 518 S.W.3d at 406. Loss of right of appeal—proximate cause for the court. In legal malpractice claims involving the loss of a right of appeal, the supreme court has determined that the question of proximate cause of a claimant’s damages is a matter of law for the court. Millhouse v. Wiesenthal , 775 S.W.2d 626 (Tex. 1989). Thus the jury should not be instructed on proximate cause issues involving the loss of a right of appeal. Caveat—legal specialists. Whether a legal specialist is to be held to a higher stan dard than that of an ordinary attorney, as set forth above, has not been decided. If a higher standard is applicable, the appropriate term to describe a specialist in the partic ular specialty (e.g., a legal specialist in Estate Planning and Probate ) should be sub stituted for the term an accountant in the definitions of “negligence” and “proximate cause”; in the definition of “ordinary care,” the words an accountant of ordinary pru-

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