PJC Malpractice 2024

M EDICAL M ALPRACTICE —D EFINITIONS , I NSTRUCTIONS & Q UESTIONS PJC 50.2

Medical & Surgical Memorial Hospital v. Cauthorn , 229 S.W.2d 932, 934–35 (Tex. App.—El Paso 1949, writ ref’d n.r.e.). Substitute particular health care provider. The appropriate term to describe the particular health care facility should be substituted for the word hospital. Locality rule. The supreme court has held that the purpose of the locality rule is served if the definitions of “negligence” and “ordinary care” refer to conduct “under the same or similar circumstances.” Thus, it is not necessary to include language such as “this or similar communities” in the charge to the jury. Birchfield v. Texarkana Memorial Hospital , 747 S.W.2d 361, 366 (Tex. 1987); Peterson v. Shields , 652 S.W.2d 929 (Tex. 1983); see also Hickson v. Martinez , 707 S.W.2d 919, 925 (Tex. App.—Dal las 1985), writ ref’d n.r.e. per curiam , 716 S.W.2d 499 (Tex. 1986) (locality rule is predicate to admit expert testimony and is therefore question of law, not fact, and need not be submitted in charge). There are certain minimum standards universally regarded as ordinary medical standards. See Webb v. Jorns , 488 S.W.2d 407, 411 (Tex. 1972). Caveat. If the evidence shows that the patient’s known condition creates a known or possible danger to the patient, by the patient’s own conduct, arising from a physical or mental incapacity, the following definition of “ordinary care” may be substituted for that above: “Ordinary care,” with respect to the conduct of Dixon Hospital , means that degree of care that a hospital of ordinary prudence would use under the same or similar circumstances, as the patient’s condi tion, as it is known to be, may require, including safeguarding and protecting the patient from any known or reasonably apparent danger from himself that may arise from his known mental or physical inca pacity. See Harris , 557 S.W.2d at 355; Harris Hospital v. Pope , 520 S.W.2d 813, 815 (Tex. App.—Fort Worth 1975, writ ref’d n.r.e.). Evidence of customary practice and standard of care. The standard of care as applied to a hospital should not be determined by resort to customary, usual, or ordi nary practices. See PJC 50.1 comment, “Evidence of customary practice and standard of care.” The role of custom in negligence cases has been stated to be merely “evi dence to be considered along with other circumstances in determining what the ordi nary reasonable man would do under the circumstances.” Stanley v. Southern Pacific Co. , 466 S.W.2d 548, 551 (Tex. 1971). Thus, the ultimate inquiry for the jury is whether the hospital failed to act as a reasonably prudent hospital would have acted. The parties are not entitled to jury questions inquiring whether a hospital has complied with custom. See Golden Villa Nursing Home v. Smith , 674 S.W.2d 343, 348 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.).

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