Texas PJC Malpractice 2022

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

pus Christi–Edinburg Feb. 8, 2010, no pet.) (citing Pech v. Estate of Tavarez , 112 S.W.3d 282, 285–86 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.)); DeRuy , 995 S.W.2d at 752; LaGesse v. PrimaCare, Inc. , 899 S.W.2d 43, 46–47 (Tex. App.— Eastland 1995, writ denied). Unfortunately, the courts have not been consistent in defining a “reasonable time” in this circumstance. At times, unexplained delays of varying lengths constitute an absence of due diligence in filing suit as a matter of law. See Shah , 67 S.W.3d at 847 (seventeen months); Erickson v. Heim-Hall , 172 S.W.3d 664, 666 (Tex. App.—San Antonio 2005, no pet.) (nineteen months); Pech , 112 S.W.3d at 287 (fourteen months); Yancy , 236 S.W.3d at 785 (twenty-two months). In other cases, though, the courts have held that an explained delay creates a fact issue about the reasonableness of the time between when the negligence was or should have been discovered and when suit was filed. For example, in Gagnier , the court held there was an issue of fact presented, despite a delay of ten months, because the plain tiff presented evidence that she was hindered by the defendants’ refusal to provide medical records and by “other circumstances,” including time required for medical recovery, consultation with an attorney, and investigation. Gagnier , 17 S.W.3d at 745– 46. In DeRuy , the court held that an issue of fact was presented despite a one-year delay because the plaintiff recuperated for three months after the surgery that gave rise to the discovery of the negligence, went to an attorney six months thereafter, and sued within three months of consulting with that attorney. DeRuy , 995 S.W.2d at 752–53. It is clear from these cases that explanations sufficient to raise an issue of fact in this regard vary on a case-by-case analysis. The Committee expresses no opinion about the type or degree of evidence that may be required to raise an issue of fact for jury sub mission in this regard in any particular case.

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