Texas PJC Malpractice 2022

M EDICAL M ALPRACTICE —D EFINITIONS , I NSTRUCTIONS & Q UESTIONS PJC 50.8

PJC 50.8

Open Courts Challenge

QUESTION ______ Do you find that Paul Payne, Jr ., did not [ actually discover or ] have a rea sonable opportunity to discover the negligence you found in response to Ques tion[ s ] ______ [ applicable liability question(s) ] on or before [ statutory two year limitations expiration date ]? Answer “Yes” or “No.” Answer: _______________ If you answered the above question “Yes,” then answer the following ques tion. Otherwise, do not answer the following question. QUESTION ______ Do you find that Paul Payne, Jr ., filed suit within a reasonable time against those you found negligent in response to Question[ s ] ______ [ applicable lia bility question(s) ] after Paul Payne, Jr ., [ actually discovered or ] reasonably should have discovered the negligent act or acts in issue? Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 50.8 may be submitted if the suit was not filed within the lim itations period of Tex. Civ. Prac. & Rem. Code § 74.251(a) (or § 74.051(c), if applica ble) but the plaintiff has challenged the application of the limitations period under a claim that it violates his right to reasonable access to the courts under the Open Courts provision of the Texas Constitution, Tex. Const. art I, § 13. If there is more than one defendant and the “actually discovered” or “should have discovered” date may be different as to two or more of those defendants, separate questions may be required for each defendant and the questions should be modified accordingly. Common-law claims only. The Open Courts defense to limitations is limited to well-established common-law causes of action, such as claims for personal injury, but is inapplicable as a matter of law when the plaintiff is pursuing any purely statutory claim, such as a wrongful death or survival claim. Bala v. Maxwell , 909 S.W.2d 889,

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