Texas PJC Malpractice 2022

PJC 50.5

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

PJC 50.5 Sole Proximate Cause—Medical There may be more than one proximate cause of an [ injury ] [ occurrence ], but if an act or omission of any person not a party to the suit was the “sole proximate cause” of an [ injury ] [ occurrence ], then no act or omission of any party could have been a proximate cause. COMMENT When to use—given in lieu of last sentence in the definition of “proximate cause” in PJC 50.1–50.3. Because “sole proximate cause” is an inferential rebuttal defense, it can be submitted only by instruction. See Tex. R. Civ. P. 277; Thota v. Young , 366 S.W.3d 678, 692 (Tex. 2012). The defense of sole proximate cause is raised if there is evidence that a person’s conduct that is not submitted to the jury is the sole proximate cause of the occurrence. Dillard v. Texas Electric Cooperative , 157 S.W.3d 429, 432 (Tex. 2005); Montes v. Pendergrass , 61 S.W.3d 505, 508 (Tex. App.—San Antonio 2001, no pet.); Rankin v. Atwood Machine Co. , 831 S.W.2d 463, 465 (Tex. App.—Houston [14th Dist.] 1992), writ denied , 841 S.W.2d 856 (Tex. 1992) (per curiam); Reid v. Best Waste Systems, Inc. , 800 S.W.2d 644, 645 (Tex. App.— Houston [14th Dist.] 1990, writ denied); Alschlager v. Remington Arms Co. , 750 S.W.2d 832, 835 (Tex. App.—Houston [14th Dist.] 1988, writ denied). Source of instruction. The instruction for sole proximate cause is derived from Dillard , 157 S.W.3d at 432; Montes , 61 S.W.3d at 508; Rankin , 831 S.W.2d at 465; Reid , 800 S.W.2d at 645; Alschlager , 750 S.W.2d at 835. Conduct need not be negligence to be sole proximate cause. A person’s con duct need not be negligence to be a sole proximate cause. Plemmons v. Gary , 321 S.W.2d 625, 626 (Tex. App.—Beaumont 1959, orig. proceeding); Gulf, Colorado & Santa Fe Railway v. Jones , 221 S.W.2d 1010, 1014 (Tex. App.—Eastland 1949, writ ref’d n.r.e.); Fort Worth & Denver City Railway v. Bozeman , 135 S.W.2d 275, 281 (Tex. App.—Amarillo 1939, writ dism’d judgm’t cor.). Caveat. Instructions are proper only if they are raised by the pleadings and the evidence. Tex. R. Civ. P. 278. Submission of an instruction that is not supported by evidence may be reversible error. See Galvan v. Fedder , 678 S.W.2d 596, 598–99 (Tex. App.—Houston [14th Dist.] 1984, no writ). The refusal to give any inferential rebuttal instruction, even if properly requested and supported by the evidence, is not necessarily reversible error. “Sole proximate cause” is an inferential rebuttal instruction. See Thota , 366 S.W.3d at 684. The Texas Supreme Court has held that (1) trial courts have significant discre tion in determining which inferential rebuttal instructions to submit, Mobil Chem. Co. v. Bell , 517 S.W.2d 245, 256 (Tex. 1974); (2) even if an inferential rebuttal instruction

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