PJC Malpractice 2024

PJC 50.1

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

seeableness.” [ Texas Indemnity Insurance Co. v. Staggs , 134 S.W.2d 1026, 1028–29 (Tex. 1940).] In other words, the producing cause inquiry is con ceptually identical to that of cause in fact. Transcontinental Insurance Co. v. Crump , 330 S.W.3d 211, 222–23 (Tex. 2010). See also Ford Motor Co. v. Ledesma , 242 S.W.3d 32, 46 (Tex. 2007). The “and without which cause” language of this instruction follows a long-accepted “strict but for” causation test applicable in most tort cases. See Rudes v. Gottschalk , 324 S.W.2d 201, 207 (Tex. 1959). However, the Texas Supreme Court has articulated an “aggregate-level” but-for causation test applicable to multiple negligent actors committing concurrent negligence “[i]f the negligent acts of each provider are so con current that they cannot be examined in isolation.” Pediatrics Cool Care v. Thompson , 649 S.W.3d 152, 159–61 (Tex. 2022) (citing Bustamante v. Ponte , 529 S.W.3d 447, 457 (Tex. 2017), and Bostic v. Georgia-Pacific Corp. , 439 S.W.3d 332, 344–45 (Tex. 2014)). Under such a circumstance, “the correct approach is to consider whether each provider’s individual negligence was a substantial factor in [causing the plaintiff’s injury] and whether the providers’ combined negligence was a but-for cause of [the plaintiff’s injury].” Pediatrics Cool Care , 649 S.W.3d at 160. To date, no Texas case analyzes the integration of an “aggregate-level” but-for causation test into the jury charge. Loss of chance. An instruction for loss of chance may be submitted if the plaintiff suffers from a preexisting medical condition or a preexisting injury that places the proximate cause of the plaintiff’s injuries or death into question. If evidence demon strates that such an injury or medical condition preexists the alleged negligence of the defendant, and, at the time of the alleged negligence, the injury or medical condition resulted in the plaintiff’s having a 50 percent or less chance of cure or survival, the fol lowing additional instruction may be proper: You are instructed that Paul Payne must have had a greater than 50 percent chance of survival if reasonable medical care had been pro vided on or around [ the time of the alleged negligence ] for the negli gence of Dr. Davis to be a proximate cause of the [ injury to ] [ death of ] Paul Payne . Columbia Rio Grande Healthcare, L.P. v. Hawley , 284 S.W.3d 851, 860–61 (Tex. 2009). The loss of chance doctrine does not apply when the defendant’s negligence is unrelated to the patient’s preexisting injury or medical condition. See, e.g. , Smith v. Christus Saint Michaels Health System , 496 Fed. Appx 468 (5th Cir. 2012) (estate of patient who bled to death from hole in neck where catheter used to treat cancer had come loose was not required to establish patient had greater than 50 percent chance of surviving his cancer to prove causation; defendant hospital’s alleged intervening negli gence in failing to activate patient’s bed alarm and to properly monitor patient caused patient to bleed to death and was unrelated to patient’s preexisting conditions).

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