PJC Malpractice 2024

M EDICAL M ALPRACTICE —D EFINITIONS , I NSTRUCTIONS & Q UESTIONS PJC 50.3

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 health care personnel should be limited to those areas of practice placed in issue by the pleadings and evi dence. For example, if the defendant’s conduct during surgery is in issue, the defini tion of negligence should focus on that conduct. Substitute appropriate term for particular personnel. See the definition of “health care provider” in Tex. Civ. Prac. & Rem. Code § 74.001(a)(12). Using “reasonable care” instead of “ordinary care.” In Hiroms v. Scheffey , 76 S.W.3d 486, 488–89 (Tex. App.—Houston [14th Dist.] 2002, no pet.), the court noted that there was merit to the appellant’s contention that the standard of care in medical malpractice cases should turn on whether the defendant exercised reasonable care rather than ordinary care. But the court ultimately did not resolve the issue because the appellant had failed to preserve error. The Committee raises the issue, however, because in some cases “reasonable” may be substituted for “ordinary,” depending on the facts and circumstances. See, e.g., Dennis v. Allison , 698 S.W.2d 94, 95 (Tex. 1985) (describing actionable negligence as breach of duty of reasonable care); Helms v. Day , 215 S.W.2d 356, 358 (Tex. App.—Fort Worth 1948, writ dism’d) (absent spe cial contract to either cure or not charge for services, a physician warrants only that he “possesses a reasonable degree of skill, such as ordinarily possessed by a profession generally, and to exercise that skill with reasonable care and diligence”) (citing Gra ham v. Gautier , 21 Tex. 111, 112 (1858)); Magnolia Paper Co. v. Duffy , 176 S.W. 89, 92 (Tex. App.—San Antonio 1915, no writ) (“The final test of negligence is not usage or custom, but the inflexible rule which fixes reasonable care as the standard by which the conduct of the master to the servant is measured.”).

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