Texas PJC Malpractice 2022

M EDICAL M ALPRACTICE —D EFINITIONS , I NSTRUCTIONS & Q UESTIONS PJC 50.2

“Ordinary care,” when used with respect to the conduct of Dixon Hospital , means that degree of care that a nurse of ordinary prudence would use under the same or similar circumstances. “Proximate cause,” when used with respect to the conduct of Dixon Hospital , means a cause that was a substantial factor in bring ing about an [ injury ] [ occurrence ], and without which cause such [ injury ] [ occurrence ] would not have occurred. In order to be a prox imate cause, the act or omission complained of must be such that a nurse using ordinary care would have foreseen that the [ injury ] [ occurrence ], or some similar [ injury ] [ occurrence ], might reason ably result therefrom. There may be more than one proximate cause of an [ injury ] [ occurrence ]. Hospital liability relating to policies and procedures. An instruction defining how a hospital acts also can be used when a hospital’s policies or procedures are called into question or when “business as usual” at a hospital is conducted outside of its writ ten policies and procedures. Hospitals have a duty to use reasonable care in formulat ing the policies and procedures that govern their medical staff and nonphysician personnel and have a duty to ensure the medical staff and nonphysician personnel fol low hospital policies and procedures when those policies and procedures reflect the standard of care to be provided to patients. See, e.g., Denton Regional Medical Center v. LaCroix , 947 S.W.2d 941, 950 (Tex. App.—Fort Worth 1997, writ dism’d by agr.) (citing Air Shields, Inc. v. Spears , 590 S.W.2d 574, 576–81 (Tex. App.—Waco 1979, writ ref’d n.r.e.)). In appropriate circumstances, the court may consider submitting the following instruction: A hospital acts in the manner in which it [ formulates ] [ follows ] [ formulates and follows ] its policies, procedures, rules, bylaws, and other governing protocols, whether express or implied. Liability of governmental hospitals. Under the doctrine of sovereign immunity, governmental units, including governmental hospitals, are entitled to immunity from lawsuits unless that immunity has been expressly waived. The Texas Tort Claims Act waives immunity in cases in which an injury was caused by “a condition or use of tan gible personal property if the governmental unit would, were it a private person, be lia ble to the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code § 101.021(2). The “use” of tangible personal property in general arises only when the use is by a governmental officer or employee acting within the scope of employment. See Tex. Civ. Prac. & Rem. Code §101.021(1). However, immunity is also deemed waived if the governmental unit or an employee of the governmental unit put or brought into action or service the tangible personal property that caused the injury, even if the tangible property was used or administered by an independent contractor or the patient. See University of Texas M.D. Anderson Cancer Center v. McKenzie , 578

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