Texas PJC Malpractice 2022

M EDICAL M ALPRACTICE —D EFINITIONS , I NSTRUCTIONS & Q UESTIONS PJC 50.1

Limit definition to areas in issue. The negligence of the physician should be limited to those areas of practice placed in issue by the pleadings and evidence. For example, if the physician’s conduct during surgery is in issue, the definition of negli gence should focus on that conduct. Modify definition of “ordinary care.” Because multiple specialists perform sur gery or treat the same area of the body (e.g., a neurosurgeon and an orthopedic surgeon both perform lumbar laminectomies), it may be appropriate to use the following defi nition of “ordinary care”: When used with respect to the conduct of Dr. Davis , “ordinary care” means that degree of care that a physician of ordinary pru dence, possessing and exercising a reasonable degree of skill and learning in back surgery , would use under the same or similar cir cumstances. For a general surgeon and a plastic surgeon who both perform breast surgery, the stan dard should be that of a breast surgeon. Similarly, for an orthopedic surgeon and a podiatrist who both perform foot surgery, the standard should be that of a foot surgeon. See King v. Flamm , 442 S.W.2d 679, 681 (Tex. 1969) . Evidence of customary practice and standard of care. In Hood , 554 S.W.2d 160, the supreme court rejected standards of care that would in any way embody the concept that negligence should be determined by what a given number of physicians do. Hence, the standards of “reasonable surgeons would disagree,” “respectable minority,” “considerable number,” “any variance,” and “consensus” were expressly rejected as legal standards for the medical profession. Hood , 554 S.W.2d at 165. An instruction or definition to the jury on any of these rejected standards would be improper. Henderson v. Heyer-Schulte Corp. , 600 S.W.2d 844 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). A proper analysis of the ultimate issue of the standard of care may involve a consid eration of the role of custom. In typical negligence cases, custom is some evidence of the standard of care; however, it is never conclusive. Leadon v. Kimbrough Bros. Lum ber Co. , 484 S.W.2d 567, 569 (Tex. 1972); Gulf, Colorado & Santa Fe Railway v. Evansich , 61 Tex. 3, 6 (1884). The ultimate inquiry for the jury is whether the defen dant failed to act as a reasonably prudent person would have acted. The parties are not entitled to jury questions inquiring whether a defendant has complied with custom. Brown v. Lundell , 344 S.W.2d 863, 867 (Tex. 1961). Texas courts have held that medi cal custom or usual or routine practice is admissible as some evidence of the medical standard of care in a given case. Kissinger v. Turner , 727 S.W.2d 750, 755 (Tex. App.—Fort Worth 1987, writ ref’d n.r.e.); Golden Villa Nursing Home v. Smith , 674 S.W.2d 343, 348 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.); see also Tex. R. Evid. 406 (habit; routine practice).

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