Texas PJC Malpractice 2022

PJC 50.1

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

Locality rule. The supreme court has held that the purpose of the locality rule is served if the definitions of “negligence” and “ordinary care” refer to conduct “under the same or similar circumstances.” Thus, it is not necessary to include language such as “this or similar communities” in the charge to the jury. Birchfield v. Texarkana Memorial Hospital , 747 S.W.2d 361, 366 (Tex. 1987); Peterson v. Shields , 652 S.W.2d 929 (Tex. 1983); see also Hickson v. Martinez , 707 S.W.2d 919, 925 (Tex. App.—Dal las 1985), writ ref’d n.r.e. per curiam , 716 S.W.2d 499 (Tex. 1986) (locality rule is predicate to admit expert testimony and is therefore question of law, not fact, and need not be submitted in charge). There are certain minimum standards universally regarded as ordinary medical standards. See Webb , 488 S.W.2d at 411. Using “reasonable care” instead of “ordinary care.” In Hiroms v. Scheffey , 76 S.W.3d 486, 488–89 (Tex. App.—Houston [14th Dist.] 2002, no pet.), the court noted that there was merit to the appellant’s contention that the standard of care in medical malpractice cases should turn on whether the defendant exercised reasonable care rather than ordinary care. But the court ultimately did not resolve the issue because the appellant had failed to preserve error. The Committee raises the issue, however, because in some cases “reasonable” may be substituted for “ordinary,” depending on the facts and circumstances. See, e.g., Dennis v. Allison , 698 S.W.2d 94, 95 (Tex. 1985) (describing actionable negligence as breach of duty of reasonable care); Helms v. Day , 215 S.W.2d 356, 358 (Tex. App.—Fort Worth 1948, writ dism’d) (absent spe cial contract to either cure or not charge for services, a physician warrants only that he “possesses a reasonable degree of skill, such as ordinarily possessed by a profession generally, and to exercise that skill with reasonable care and diligence”) (citing Gra ham v. Gautier , 21 Tex. 111, 112 (1858)); Magnolia Paper Co. v. Duffy , 176 S.W. 89, 92 (Tex. App.—San Antonio 1915, no writ) (“The final test of negligence is not usage or custom, but the inflexible rule which fixes reasonable care as the standard by which the conduct of the master to the servant is measured.”).

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