Texas PJC Malpractice 2022

P ERSONAL I NJURY D AMAGES

PJC 80.5

value the injuries themselves without regard to who is to be compensated for those injuries. Question assumes child under eighteen. The form of PJC 80.5 assumes the minor has not reached the age of eighteen years by the time of trial. If he has, elements 4, 5, 11, and 12 must be changed to inquire about (1) damages in the past up to the age of eighteen, (2) damages from the time the minor reaches the age of eighteen to the time of trial, and (3) damages from trial into the future. Caveat on submitting physical pain and mental anguish together. To avoid concerns about improperly mixing valid and invalid elements of damages ( see Harris County v. Smith , 96 S.W.3d 230, 234 (Tex. 2002)), when the sufficiency of the evi dence to support either physical pain or mental anguish is in question, separate sub mission of those items may avoid the need for a new trial if a sufficiency challenge is upheld on appeal. See Katy Springs & Manufacturing, Inc. v. Favalora , 476 S.W.3d 579, 597–99, 610–11 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (although challenge to separate submission was waived, separate awards allowed modification of judgment, rather than remand for new trial, where evidence of future mental anguish was legally insufficient). The Texas Supreme Court has yet to decide the issue. Medical care expenses. Recovery of medical or health care expenses is governed by section 41.0105 of the Texas Civil Practice and Remedies Code. This statute pro vides, “In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.” Tex. Civ. Prac. & Rem. Code §41.0105. See also Haygood v. De Escabedo , 356 S.W.3d 390 (Tex. 2011) (interpreting section 41.0105). Medical expenses, lost earnings recoverable only by parents. Because the right to recover medical costs incurred on behalf of an unemancipated minor and loss of an unemancipated minor’s earnings belong to the parents or the minor’s estate, the ele ments of future loss of earning capacity and future medical expenses should be sepa rated further to distinguish between those damages incurred before and after the child reaches the age of eighteen. Tex. Fam. Code §151.001(a)(5); Sax v. Votteler , 648 S.W.2d 661, 666 (Tex. 1983). See PJC 80.6 for submission of the parents’ loss of ser vices of a minor child. There may be times when the minor may recover medical expenses up to age eighteen. See Sax , 648 S.W.2d at 666. Periodic payments. Subchapter K of the Texas Medical Liability Act provides for the mandatory payment of certain future damages at defined intervals. Tex. Civ. Prac. & Rem. Code §74.501; Gunn v. McCoy , 554 S.W.3d 645, 679 (Tex. 2018); Regent Care Center of San Antonio, L.P. v. Detrick , 567 S.W.3d 752, 771 (Tex. App.— San Antonio 2018), aff’d , 610 S.W.3d 830, 838–39 (Tex. 2020). Separate answer for each element. Economic damages must be determined “separately from the amount of other compensatory damages.” Tex. Civ. Prac. & Rem.

313