Texas PJC Malpractice 2022

PJC 50.1

M EDICAL M ALPRACTICE —D EFINITIONS , I NSTRUCTIONS & Q UESTIONS

seeableness.” [ Texas Indemnity Insurance Co. v. Staggs , 134 S.W.2d 1026, 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. Lost chance of survival. An instruction for lost chance of survival should be sub mitted only if the plaintiff suffers from a particular medical condition, such as cancer, that places the proximate cause of the plaintiff’s death or impending death into ques tion. If evidence demonstrates that such a medical condition preexists the alleged neg ligence of the defendant, and, at the time of the alleged negligence, the medical condition resulted in the plaintiff’s having a 50 percent or less chance of survival, the following additional instruction is proper: You are instructed that Paul Payne must have had a greater than fifty percent (50%) chance of survival if reasonable medical care had been provided on or around [ the time of the alleged negligence ] for the negligence of Dr. Davis to be a proximate cause of the [ injury to ] Paul Payne . Columbia Rio Grande Healthcare, L.P. v. Hawley , 284 S.W.3d 851, 860–61 (Tex. 2009). In an appropriate case, the words death of may be substituted for injury to . Evidence of bad result. The instruction about evidence of a bad result shall be added to the definition of “negligence.” See PJC 50.7. Substitute appropriate term for specialist. The term designating the particular medical specialist involved (e.g., an orthopedic surgeon ) should be substituted for the words a physician .

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