PJC Malpractice 2024

About This Product4
Copyright Information4
Committee 2024–20255
State Bar of Texas Staff7
Committee 1989–20238
Contents12
Preface26
Preface to the 2024 Edition27
Changes in the 2024 Edition28
How to Download This Book590
License and Limited Warranty593
Introduction29
INDEXES557
Statutes and Rules Cited557
Texas Business & Commerce Code557
Texas Business Organizations Code557
Texas Civil Practice & Remedies Code557
Texas Family Code559
Texas Finance Code559
Texas Health & Safety Code559
Texas Occupations Code559
Texas Parks & Wildlife Code559
Texas Penal Code560
Texas Tax Code561
Texas Administrative Code561
Texas Rules of Civil Procedure561
Texas Rules of Evidence561
Texas Disciplinary Rules of Professional Conduct562
United States Code562
Miscellaneous562
Cases Cited563
A563
B563
C564
D564
E565
F565
G565
H566
I567
J567
K567
L567
M568
N568
O568
P568
Q569
R569
S569
T570
U570
V570
W571
Y571
Subject Index572
A572
B573
C574
D575
E577
F579
G579
H580
I580
J581
K581
L581
M582
N583
O584
P584
R587
S587
T588
U589
V589
W589
Chapter 40 Admonitory Instructions33
PJC 40.1 Instructions to Jury Panel before Voir Dire Examination35
PJC 40.2 Instructions to Jury after Jury Selection37
PJC 40.3 Charge of the Court41
PJC 40.3A Charge of the Court—Twelve-Member Jury41
PJC 40.3B Charge of the Court—Six-Member Jury45
PJC 40.4 Additional Instruction for Bifurcated Trial52
PJC 40.5 Instructions to Jury after Verdict54
PJC 40.6 Instruction to Jury If Permitted to Separate55
PJC 40.7 Instruction If Jury Disagrees about Testimony56
PJC 40.8 Circumstantial Evidence (Optional)57
PJC 40.9 Instructions to Deadlocked Jury58
PJC 40.10 Privilege—Generally No Inference59
PJC 40.11 Fifth Amendment Privilege—Adverse Inference May Be Considered60
PJC 40.12 Parallel Theories on Damages61
PJC 40.13 Instruction on Spoliation62
PJC 40.14 Instruction on Deposition Testimony64
PJC 40.15 Instructions for Multilingual Jurors65
PJC 40.15A Contemporaneous Instruction on Witness Testimony for Multilingual Jurors65
PJC 40.15B Contemporaneous Instruction on Audio Recordings for Multilingual Jurors65
PJC 40.15C Instruction for the Final Charge for Multilingual Jurors65
Chapter 50 Medical Malpractice—Definitions, Instructions, and Preliminary Questions68
PJC 50.1 Physician’s Degree of Care; Proximate Cause69
PJC 50.2 Hospital’s Degree of Care; Proximate Cause73
PJC 50.3 Health Care Personnel’s Degree of Care; Proximate Cause79
PJC 50.4 New and Independent Cause—Medical82
PJC 50.5 Sole Proximate Cause—Medical84
PJC 50.6 Physician-Patient Relationship86
PJC 50.7 Evidence of Bad Result88
PJC 50.8 Open Courts Challenge89
Chapter 51 Medical Malpractice—Theories of Direct Liability92
PJC 51.1 Use of “Injury” or “Occurrence” (Comment)94
PJC 51.2 Submission of Settling Persons, Contribution Defendants, and Responsible Third Parties (Comment)95
PJC 51.3 Negligence of Physician, Hospital, or Other Health Care Provider96
PJC 51.4 Proportionate Responsibility—Medical99
PJC 51.5 Proportionate Responsibility If Contribution Defendant Is Joined—Medical101
PJC 51.6 Proportionate Responsibility—Medical—Derivative Claimant103
PJC 51.7 Abandonment of Patient by Physician105
PJC 51.8 Res Ipsa Loquitur—Medical (Comment)107
PJC 51.9 Informed Consent (Common Law)109
PJC 51.10 Informed Consent (Statutory)—Procedure Not on List A or B—No Emergency or Other Medically Feasible Reason for Nondisclosure—Disclosure in Issue111
PJC 51.11 Informed Consent (Statutory)—Procedure on List A—No Emergency or Other Medically Feasible Reason for Nondisclosure—No Disclosure114
PJC 51.12 Informed Consent (Statutory)—Procedure on List A—No Emergency or Other Medically Feasible Reason for Nondisclosure—Disclosure Not in Statutory Form116
PJC 51.13 Informed Consent (Statutory)—Procedure on List A—No Disclosure—Emergency or Other Medically Feasible Reason for Nondisclosure in Issue118
PJC 51.14 Informed Consent (Statutory)—Procedure on List A—Validity of Disclosure Instrument in Issue120
PJC 51.15 Battery—Medical121
PJC 51.16 Express Warranty—Medical123
PJC 51.17 Implied Warranty—Medical (Comment)125
PJC 51.18 Emergency Care and Emergency Medical Care126
PJC 51.18A Emergency Care (Good Samaritan)126
PJC 51.18B Emergency Medical Care129
PJC 51.19 Malicious Credentialing Claim against a Hospital133
PJC 51.20 The Emergency Medical Treatment and Active Labor Act (EMTALA)—Medical Screening Examinations and/or Stabilization before Transfer When a Patient Comes to a Hospital with an Emergency Medical Condition134
PJC 51.21 Liability of Physicians, Health Care Providers, and First Responders During Pandemic (Comment)140
Chapter 52 Medical Malpractice—Theories of Vicarious Liability141
PJC 52.1 Borrowed Employee—Medical—Liability of Borrowing Employer142
PJC 52.2 Borrowed Employee—Medical—Lending Employer’s Rebuttal Instruction143
PJC 52.3 Borrowed Employee—Medical—Disjunctive Submission of Lending or Borrowing Employer144
PJC 52.4 Ostensible Agency—Question and Instruction145
Chapter 53 Medical Malpractice—Defenses147
Chapter 60 Nonmedical Professional Malpractice—Definitions and Instructions149
PJC 60.1 Nonmedical Professional’s Degree of Care; Proximate Cause150
PJC 60.2 New and Independent Cause—Nonmedical Professional155
PJC 60.3 Sole Proximate Cause—Nonmedical Professional157
Chapter 61 Nonmedical Professional Malpractice—Theories of Recovery159
PJC 61.1 Use of “Injury” or “Occurrence” (Comment)160
PJC 61.2 Submission of Settling Persons, Contribution Defendants, and Responsible Third Parties (Comment)161
PJC 61.3 Nonmedical Professional Relationship—Existence in Dispute162
PJC 61.4 Question and Instruction on Negligent Misrepresentation164
PJC 61.5 Negligence of Nonmedical Professional166
PJC 61.6 Breach of Fiduciary Duty of Nonmedical Professional (Comment)169
PJC 61.7 Proportionate Responsibility—Nonmedical Professional171
PJC 61.8 Proportionate Responsibility If Contribution Defendant Is Joined—Nonmedical Professional173
PJC 61.9 Proportionate Responsibility—Nonmedical Professional—Derivative Claimant175
PJC 61.10 Liability of Attorneys under Deceptive Trade Practices Act (Comment)177
PJC 61.11 Attorney-Client Relationship—Existence in Dispute178
PJC 61.12 Breach of Fiduciary Duty against Attorney in His Role as Attorney—Burden on Attorney180
PJC 61.13 Question on Discovery Rule—Attorney Malpractice, Breach of Fiduciary Duty, or Fraud185
Chapter 65 Premises Liability—Definitions and Instructions188
PJC 65.1 Application—Distinction between Premises Defect, Negligent Activity, and Negligence of Nonsubscribing Employer (Comment)189
PJC 65.2 Negligence and Ordinary Care of Plaintiffs or of Defendants Other Than Owners or Occupiers of Premises191
PJC 65.3 Child’s Degree of Care192
PJC 65.4 Proximate Cause—Premises194
PJC 65.5 New and Independent Cause—Premises196
PJC 65.6 Sole Proximate Cause—Premises198
PJC 65.7 Unavoidable Accident200
PJC 65.8 Act of God201
PJC 65.9 Emergency202
Chapter 66 Premises Liability—Theories of Recovery203
PJC 66.1 Use of “Injury” or “Occurrence” (Comment)204
PJC 66.2 Submission of Settling Persons, Contribution Defendants, and Responsible Third Parties (Comment)205
PJC 66.3 Premises Liability Based on Negligent Activity or Premises Defect—Right to Control206
PJC 66.4 Premises Liability—Plaintiff Is Invitee208
PJC 66.5 Premises Liability—Plaintiff Is Licensee213
PJC 66.6 Premises Liability—Plaintiff’s Status in Dispute216
PJC 66.7 Premises Liability—Disjunctive Submission of Invitee-Licensee for Alternate Theories of Recovery218
PJC 66.8 Premises Liability—Plaintiff-Licensee Injured by Gross Negligence220
PJC 66.9 Premises Liability—Plaintiff Is Trespasser222
PJC 66.10 Premises Liability—Attractive Nuisance225
PJC 66.11 Premises Liability—Proportionate Responsibility228
PJC 66.12 Premises Liability—Proportionate Responsibility If Contribution Defendant Is Joined230
PJC 66.13 Premises Liability—Proportionate Responsibility—Derivative Claimant232
PJC 66.14 Property Owner’s Liability to Contractors, Subcontractors, or Their Employees (Tex. Civ. Prac. & Rem. Code Ch. 95)234
Chapter 70 Products Liability—Definitions, Instructions, and Preliminary Questions236
PJC 70.1 Producing Cause —Products Liability237
PJC 70.2 Proximate Cause—Breach of Warranty239
PJC 70.3 New and Independent Cause—Products Liability241
PJC 70.4 Sole Cause—Products Liability243
PJC 70.5 Seller of a Product244
PJC 70.6 Substantial Change in Condition or Subsequent Alteration by Affirmative Conduct—Instruction245
PJC 70.7 Statute of Repose (Comment)246
Chapter 71 Products Liability—Theories of Recovery247
PJC 71.1 Use of “Injury” or “Occurrence” (Comment)248
PJC 71.2 Submission of Settling Persons, Contribution Defendants, and Responsible Third Parties (Comment)249
PJC 71.3 Manufacturing Defect250
PJC 71.4 Design Defect252
PJC 71.5 Defect in Warnings or Instructions (Marketing Defect)255
PJC 71.6 Misrepresentation259
PJC 71.7 Negligence in Products Cases261
PJC 71.8 Negligent Undertaking265
PJC 71.9 Breach of Implied Warranty of Merchantability (Tex. UCC § 2.314(b)(3)) (Design Defect)267
PJC 71.10 Breach of Implied Warranty of Merchantability (Tex. UCC § 2.314(b)(1), (b)(2), (b)(4), (b)(6))270
PJC 71.11 Breach of Implied Warranty of Fitness for a Particular Purpose (Tex. UCC § 2.315)273
PJC 71.12 Breach of Express Warranty (Tex. UCC § 2.313)276
PJC 71.13 Products Liability—Proportionate Responsibility278
PJC 71.14 Products Liability—Proportionate Responsibility If Contribution Defendant Is Joined280
PJC 71.15 Products Liability—Proportionate Responsibility—Derivative Claimant282
Chapter 72 Joint and Several Liability284
PJC 72.1 Application—Joint and Several Liability as a Consequence of Certain Penal Code Violations (Comment)286
PJC 72.2 Question and Instructions—Murder as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(A))287
PJC 72.3 Question and Instructions—Capital Murder as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(B))289
PJC 72.4 Question and Instructions—Aggravated Kidnapping as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(C))292
PJC 72.5 Question and Instructions—Aggravated Assault as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(D))294
PJC 72.6 Question and Instructions—Sexual Assault as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(E))296
PJC 72.7 Question and Instructions—Aggravated Sexual Assault as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(F))298
PJC 72.8 Injury to Child, Elderly Individual, or Disabled Individual as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(G))301
PJC 72.8A Question and Instructions—Injury to a Childas a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(G))301
PJC 72.8B Question and Instructions—Injury to an Elderly Individual as a Ground for Joint and Several Liability(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(G))303
PJC 72.8C Question and Instructions—Injury to a Disabled Individual as a Ground for Joint and Several Liability(Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(G))305
PJC 72.9 Question and Instructions—Forgery as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(H))308
PJC 72.10 Question and Instructions—Commercial Bribery as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(I))310
PJC 72.11 Question and Instructions—Misapplication of Fiduciary Property or Property of Financial Institution as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(J))312
PJC 72.12 Question and Instructions—Fraudulent Securing of Document Execution as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(K))314
PJC 72.13 Question and Instructions—Fraudulent Destruction, Removal, Alteration, or Concealment of Writing as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(L))316
PJC 72.14 Question and Instructions—Theft as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(M))318
PJC 72.15 Question and Instructions—Continuous Sexual Abuse of a Young Child or Disabled Individual as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(N))320
Chapter 80 Personal Injury Damages322
PJC 80.1 Personal Injury Damages—Instruction ConditioningDamages Questions on Liability324
PJC 80.2 Personal Injury Damages—Instruction on Whether Compensatory Damages Are Subject to Income Taxes325
PJC 80.3 Personal Injury Damages—Basic Question326
PJC 80.4 Personal Injury Damages—Injury of Spouse336
PJC 80.5 Personal Injury Damages—Injury of Minor Child339
PJC 80.6 Personal Injury Damages—Parents’ Loss of Services of Minor Child345
PJC 80.7 Personal Injury Damages—Instructions in Cases Involving Preexisting Injury or Condition or Subsequent Aggravation of Injury347
PJC 80.7A Personal Injury Damages—No Aggravation of Preexisting Symptomatic Condition or Injury and No Eggshell Plaintiff347
PJC 80.7B Personal Injury Damages—Aggravation of Symptomatic Preexisting Injury or Condition347
PJC 80.7C Personal Injury Damages—Asymptomatic Preexisting Injury or Condition—Eggshell Plaintiff347
PJC 80.7D Personal Injury Damages—Instructions in Cases Involving Subsequent Aggravation of Injury347
PJC 80.8 Personal Injury Damages—Exclusionary Instruction for Failure to Mitigate350
PJC 80.9 Personal Injury Damages—Cautionary Instruction Concerning Damages Limit in Health Care Suit352
PJC 80.10 Personal Injury Damages—Child’s Loss of Consortium—Question about Parent’s Injury353
PJC 80.11 Personal Injury Damages—Child’s Loss of Consortium—Damages Question354
PJC 80.12 Personal Injury Damages—Bystander Claim356
PJC 80.12A Bystander Status356
PJC 80.12B Bystander Claim—Damages Question356
Chapter 81 Wrongful Death Damages359
PJC 81.1 Wrongful Death Damages—Instruction Conditioning Damages Questions on Liability360
PJC 81.2 Wrongful Death Damages—Instruction on Whether Compensatory Damages Are Subject to Income Taxes361
PJC 81.3 Wrongful Death Damages—Claim of Surviving Spouse362
PJC 81.4 Wrongful Death Damages—Claim of Surviving Child368
PJC 81.5 Wrongful Death Damages—Claim of Surviving Parents of Minor Child372
PJC 81.6 Wrongful Death Damages—Claim of Surviving Parents of Adult Child375
PJC 81.7 Wrongful Death Damages—Cautionary Instruction Concerning Damages Limit in Health Care Suit378
Chapter 82 Survival Damages379
PJC 82.1 Survival Damages—Instruction Conditioning Damages Questions on Liability380
PJC 82.2 Survival Damages—Instruction on Whether Compensatory Damages Are Subject to Income Taxes381
PJC 82.3 Survival Damages—Compensatory Damages382
PJC 82.4 Survival Damages—Cautionary Instruction Concerning Damages Limit in Health Care Suit386
Chapter 83 Property Damages387
PJC 83.1 Property Damages—Instruction Conditioning Damages Questions on Liability388
PJC 83.2 Property Damages—Instruction on Whether Compensatory Damages Are Subject to Income Taxes389
PJC 83.3 Personal Property Damages—Total Destruction of Property390
PJC 83.4 Property Damages—Partial Destruction of Property393
PJC 83.4A Property Damages—Partial Destruction of Property—Difference in Market Value Only393
PJC 83.4B Property Damages—Partial Destruction of Property—Cost of Repairs393
Chapter 84 Economic Damages396
PJC 84.1 Economic Damages—Instruction Conditioning Damages Questions on Liability397
PJC 84.2 Economic Damages—Instruction on Whether Compensatory Damages Are Subject to Income Taxes398
PJC 84.3 Economic Damages—Nonmedical Professional Malpractice399
PJC 84.4 Sample Instructions for Economic Damages—Legal Malpractice401
PJC 84.5 Sample Instructions for Economic Damages—Accounting Malpractice404
PJC 84.6 Economic Damages—Question and Instruction on Monetary Loss Caused by Negligent Misrepresentation406
PJC 84.7 Attorney’s Fee Forfeiture (Comment)409
Chapter 85 Exemplary Damages411
PJC 85.1 Standard for Recovery of Exemplary Damages —Gross Negligence414
PJC 85.2 Imputing Gross Negligence to a Corporation416
PJC 85.3 Determining Amount of Exemplary Damages420
PJC 85.4 Apportioning Exemplary Damages423
PJC 85.5 Question and Instructions—Murder as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(1))424
PJC 85.6 Question and Instructions—Capital Murder as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(2))429
PJC 85.7 Question and Instructions—Aggravated Kidnapping as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(3))434
PJC 85.8 Question and Instructions—Aggravated Assault as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(4))438
PJC 85.9 Question and Instructions—Sexual Assault as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(5))442
PJC 85.10 Question and Instructions—Aggravated Sexual Assault as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(6))447
PJC 85.11 Injury to a Child, Elderly Individual, or Disabled Individual as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(7))454
PJC 85.11A Question and Instructions—Injury to a Child as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(7))454
PJC 85.11B Question and Instructions—Injury to an Elderly Individual as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(7))458
PJC 85.11C Question and Instructions—Injury to a Disabled Individual as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(7))462
PJC 85.12 Question and Instructions—Fraudulent Securing of Document Execution as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(11))467
PJC 85.13 Question and Instructions—Commercial Bribery as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(9))471
PJC 85.14 Question and Instructions—Misapplication of Fiduciary Property or Property of Financial Institution as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(10))475
PJC 85.15 Question and Instructions—Forgery as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(8))480
PJC 85.16 Question and Instructions—Fraudulent Destruction, Removal, or Concealment of Writing as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(12))484
PJC 85.17 Question and Instructions—Theft as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(13))488
PJC 85.18 Question and Instructions—Intoxication Assault as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(14))493
PJC 85.19 Question and Instructions—Intoxication Manslaughter as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(15))496
PJC 85.20 Question and Instructions—Continuous Sexual Abuse of Young Child or Disabled Individual as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(16))499
PJC 85.21 Question and Instructions—Trafficking of Persons as a Statutory Ground for Removing Limitation on Exemplary Damages (Tex. Civ. Prac. & Rem. Code § 41.008(c)(17))503
Chapter 86 Preservation of Charge Error509
PJC 86.1 Preservation of Charge Error (Comment)510
PJC 86.2 Broad-Form Issues and the Casteel Doctrine (Comment)514
Appendix516
Contents of Texas Pattern Jury Charges—General Negligence, Intentional Personal Torts & Workers' Compensation (2024 Ed.)516
Contents of Texas Pattern Jury Charges—Business, Consumer, Insurance & Employment (2024 Ed.)527
Contents of Texas Pattern Jury Charges—Family & Probate (2024 Ed.)540
Contents of Texas Pattern Jury Charges—Oil & Gas (2024 Ed.)548

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