PJC Malpractice 2024

PJC 50.2

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

enzie , 578 S.W.3d 506, 511, 513 (Tex. 2019) (decision by governmental hospital to use improper intravenous fluid that injured patient waived immunity for the hospital, though fluid was administered by independent contractor). See also University of Texas M.D. Anderson Cancer Center v. Jones , 485 S.W.3d 145, 147, 150 (Tex. App.— Houston [14th Dist.] 2016, pet. denied) (patient injured by medication prescribed and dispensed by governmental employee sufficient to waive immunity, though patient self-administered the medication). In such cases, the liability of the governmental unit should be submitted under a broad-form negligence issue accompanied by an instruc tion limiting the jury to consideration of acts of negligence that would satisfy the requirements of the Texas Tort Claims Act. See County of Galveston v. Morgan , 882 S.W.2d 485, 491 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (waiver of immunity arising from use of motor vehicle). 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. , 284 S.W.3d at 860–61. 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 negligence 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). Evidence of bad result. The instruction about evidence of a bad result shall be added to the definition of “negligence.” See PJC 50.7. Limit definition to areas in issue. The negligence of the hospital should be lim ited to those areas of practice placed in issue by the pleadings and evidence. For exam ple, if only the adequacy of the hospital’s equipment is in issue, the definition of negligence should focus on the conduct of the hospital with regard to the equipment.

46