Texas PJC Malpractice 2022

PJC 51.3

M EDICAL M ALPRACTICE —T HEORIES OF D IRECT L IABILITY

the evidence raises “new and independent cause,” the definitions in PJC 50.4 should be used in lieu of the definition of “proximate cause” in PJC 50.1–50.3. Use of “injury” or “occurrence.” See PJC 51.1. Substitution of “death.” Under the Texas wrongful death statute, a defendant’s liability may be predicated only on “an injury that causes an individual’s death.” Tex. Civ. Prac. & Rem. Code §71.002(b); see also Kramer v. Lewisville Memorial Hospi tal , 858 S.W.2d 397, 404 (Tex. 1993). Therefore, in a case involving a claim for wrongful death, the word “death” may be substituted for the word “injury” in the neg ligence question. Plaintiff’s negligence. It may be appropriate to submit the plaintiff’s contributory negligence in a comparative responsibility issue in a health care liability claim if (1)the plaintiff failed to cooperate with his medical care and such failure was both negligent and a substantial factor in causing the injury, (2)the injury in issue was a reasonably foreseeable result of the failure to cooperate, and (3)but for the contribu tory negligence of the plaintiff the injury would not have occurred. See Columbia Medical Center of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 246 (Tex. 2008); Jack son v. Axelrad , 221 S.W.3d 650, 654 (Tex. 2007). In a case in which the plaintiff’s neg ligence is in issue, or in any case including more than one defendant, a proportionate responsibility question should follow PJC 51.3. Tex. Civ. Prac. & Rem. Code §§ 33.001–.017. See PJCs 51.4 and 51.6. However, if the only evidence of plaintiff’s negligence is conduct of the patient after the health care in issue, that conduct should be addressed by the instruction in PJC 80.8 (failure to mitigate damages instruction). Similarly, if the only evidence of plaintiff responsibility is an injury or conduct that preceded presentation to the defen dant health care provider, that injury or conduct should be addressed by one or more of the instructions in PJC 80.7 for a preexisting injury or condition. Contributory negligence of plaintiff in negligent failure to prevent suicide or attempted suicide cases. In cases where it is alleged that the sole cause of the inju ries or damages alleged was the attempted or actual suicide of the plaintiff or plain tiff’s decedent, it is improper to submit an issue of contributory negligence if the claims to be submitted against the defendant health care providers arise, in whole or in part, from their alleged failure to adequately perform a duty to prevent the suicide or attempted suicide. Tex. Civ. Prac. & Rem. Code § 93.001(a)(2); Kassen v. Hatley , 887 S.W.2d 4, 12–13 (Tex. 1994); Rio Grande Regional Hospital, Inc. v. Villarreal , 329 S.W.3d 594, 623–24 (Tex. App.—Corpus Christi–Edinburg 2010, pet. granted, judgm’t vacated w.r.m. pursuant to settlement, No. 10-0927, 2013 Tex. LEXIS 725 (Tex. 2013)). Professional associations. In most cases, the jury should be asked only whether a physician or health care provider was negligent, and the consequences to the profes sional association follow as a matter of law. For a discussion of when it might be

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