Texas PJC Malpractice 2022

PJC 50.2

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

S.W.3d 506, 511, 513 (Tex. 2019) (decision by governmental hospital to use improper intravenous fluid that injured patient waived immunity for the hospital, though fluid was administered by independent contractor). See also University of Texas M.D. Anderson Cancer Center v. Jones , 485 S.W.3d 145, 147, 150 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (patient injured by medication prescribed and dispensed by governmental employee sufficient to waive immunity, though patient self-adminis tered the medication). In such cases, the liability of the governmental unit should be submitted under a broad-form negligence issue accompanied by an instruction limiting the jury to consideration of acts of negligence that would satisfy the requirements of the Texas Tort Claims Act. See County of Galveston v. Morgan , 882 S.W.2d 485, 491 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (waiver of immunity arising from use of motor vehicle). 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 Dixon Hospital to be a proximate cause of the [ injury to ] Paul Payne . Columbia Rio Grande Healthcare, L.P. , 284 S.W.3d at 860–61. 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. Limit definition to areas in issue. The negligence of the hospital should be lim ited to those areas of practice placed in issue by the pleadings and evidence. For exam ple, if only the adequacy of the hospital’s equipment is in issue, the definition of negligence should focus on the conduct of the hospital with regard to the equipment. Medical & Surgical Memorial Hospital v. Cauthorn , 229 S.W.2d 932, 934–35 (Tex. App.—El Paso 1949, writ ref’d n.r.e.). Substitute particular health care provider. The appropriate term to describe the particular health care facility should be substituted for the word hospital. 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

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