Texas PJC Malpractice 2022

PJC 50.2

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

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 negligence case involving a hospital. See, e.g., PJC 51.3. If the evidence raises “new and independent cause,” the definitions in PJC 50.4 should be used in lieu of the definition of “proximate cause” above. Hospital liability for conduct of agents and employees. An instruction defining how a hospital acts can be used when the claim is for the hospital’s vicarious liability based on conduct of a hospital’s agents or employees. In those circumstances, the fol lowing instruction is proper: A hospital acts through its agents, employees, officers, and repre sentatives, and those acts are the acts of the hospital. However, when this instruction is used and there is no claim that the hospital is liable for the acts of the independent contractor physician, Columbia Rio Grande Health care, L.P. v. Hawley , 284 S.W.3d 851, 863 (Tex. 2009), indicates that the following instruction also should be given, substituting the name of the independent contractor physician: In considering the negligence of Dixon Hospital , do not consider the acts or omissions of the independent contractor physician . In addition, if the claim against the hospital is for vicarious liability based on the con duct of a hospital employee, such as a nurse, the definitions may be modified to substi tute the particular employee in lieu of the hospital: “Negligence,” when used with respect to the conduct of Dixon Hospital , means failure to use ordinary care, that is, failing to do that which a nurse of ordinary prudence would have done under the same or similar circumstances or doing that which a nurse of ordinary pru dence would not have done under the same or similar circumstances.

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