Texas PJC Malpractice 2022

PJC 50.3

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 medical malpractice case involving health care personnel. 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. 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 Don Donaldson to be a proximate cause of the [ injury to ] Paul Payne . Columbia Rio Grande Healthcare, L.P. v. Hawley , 284 S.W.3d 851, 860–61 (Tex. 2009). 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 health care personnel should be limited to those areas of practice placed in issue by the pleadings and evi dence. For example, if the defendant’s conduct during surgery is in issue, the defini tion of negligence should focus on that conduct.

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