Texas PJC Malpractice 2022

PJC 80.3

P ERSONAL I NJURY D AMAGES

In determining whether the evidence supports an award for physical impairment “distinct from losses compensable under other damages categories . . . . Texas courts have looked to whether (1)impediments to the plaintiff’s non-work related activities are obvious from the injury itself; or (2)the plaintiff produces some evidence of spe cific non-work related tasks or activities he can no longer perform.” Patlyek v. Brit tain , 149 S.W.3d 781, 787 (Tex. App.—Austin 2004, pet. denied) (op. on reh’g). See, e.g. , Patlyek , 149 S.W.3d at 787 (difficulty eating and communicating with others; continuing inability to sleep due to sharp pains, plus inability to run, bicycle, partici pate in triathlons, and play with children; past inability to walk and future difficulties in running, standing, and climbing; inability to ascend or descend stairs or kneel and difficulty in standing for long periods of time; loss of 75 percent of strength in left arm, which subsequently contributed to plaintiff’s falling, breaking her leg, and being confined to a wheelchair; and difficulties performing yard work, car maintenance, and playing racquetball). See also Estrada v. Dillon , 44 S.W.3d 558, 561–62 (Tex. 2001) (per curiam) (evidence of physical impairment must focus on restriction of activities caused by the injury). Physical impairment and disfigurement. For the difference between physical impairment and cosmetic disfigurement, see Texas Farm Products v. Leva , 535 S.W.2d 953 (Tex. App.—Tyler 1976, no writ). Loss of earning capacity. The proper measure of damages in a personal injury case is loss of earning capacity, rather than loss of earnings in the past. Dallas Railway & Terminal v. Guthrie , 210 S.W.2d 550 (Tex. 1948); T.J. Allen Distributing Co. v. Leatherwood , 648 S.W.2d 773 (Tex. App.—Beaumont 1983, writ ref’d n.r.e.). How ever, loss of earnings has been allowed in some cases. See Home Interiors & Gifts v. Veliz , 695 S.W.2d 35 (Tex. App.—Corpus Christi–Edinburg 1985, writ ref’d n.r.e.); Carr v. Galvan , 650 S.W.2d 864 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.). For loss of earning capacity if the plaintiff is self-employed, see King v. Skelly , 452 S.W.2d 691 (Tex. 1970), and Bonney v. San Antonio Transit Co. , 325 S.W.2d 117 (Tex. 1959). Future medical care. Future medical care is established by evidence that, in all reasonable probability, such care will be required and by evidence of the reasonable cost of that care. Whole Foods Market Southwest, L.P. v. Tijerina , 979 S.W.2d 768, 781 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). However, “an award of future medical expenses, by its very nature, is not a matter of certainty.” Gunn v. McCoy , 554 S.W.3d 645, 670 (Tex. 2018); see also Sanmina–SCI Corp. v. Ogburn , 153 S.W.3d 639, 643 (Tex. App.—Dallas 2004, pet. denied) (noting uncertainty of such matters as life expectancy, medical advances, and future costs of medicines). Accordingly, courts generally do not require any particular evidence to support future medical expenses— i.e., future medical expenses can be established through expert medical testimony, but they may also be established based on evidence of the nature of the injuries incurred together with the reasonable value of the past medical treatment rendered and the plaintiff’s condition at trial. Tijerina , 979 S.W.2d at 781; see also Finley v. P.G. , 428

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