Medical Malpractice - Nurse Malpractice

Medical Malpractice Austin Texas

Mar 17, 2013 — by Jeff Mundy
Tags: Medical Malpractice


Existence of a Duty

In a medical malpractice claim, the plaintiff must prove four elements: (1) a duty by the physician/nurse/hospital to act according to applicable standards of care; (2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury. Morrell v. Finke, 184 S.W.3d 257, 271 (Tex.App.--Fort Worth 2005, pet. denied); Cruz v. Paso Del Norte Health Foundation, 44 S.W.3d 622, 629-30 (Tex.App.--El Paso 2001, pet. denied). The existence of a duty is a threshold question of law which must be decided before the issue of standard of care arises. Lection v. Dyll, 65 S.W.3d 696, 704 (Tex.App.--Dallas 2001, pet. denied), citing St. John v. Pope, 901 S.W.2d 420, 424 (Tex. 1995).

In St. John v Pope, the Supreme Court explained that medical malpractice developed as a theory of liability discrete from common-law negligence and is imbued with both contract and tort principles. St. John, 901 S.W.2d at 423. Medical malpractice also differs from ordinary negligence in the circumstances under which a duty arises. St. John, 901 S.W.2d at 423. In an ordinary negligence case, the duty to refrain from negligently injuring others requires no prior relationship. Id. Professionals, on other hand, do not owe a duty to exercise their particular talents, knowledge, and skill on behalf of every person they encounter. Id. "As is true of all callings, physicians are not obligated to practice their profession or render services to everyone who asks." Id. It is only with the physician's express or implied consent that the physician-patient relationship is created. Id. The court held in St. John that the duty to treat the patient with proper professional skill flows from the consensual relationship between the patient and physician, and only when that relationship exists can there be a breach of a duty resulting in medical malpractice. Id. Creation of the physician-patient relationship does not require the formalities of a contract. Id. at 424. The fact that a physician does not deal directly with a patient does not preclude the existence of a physician-patient relationship. Id. If there is no prior relationship between the physician and the patient, there must be some affirmative action on the part of the physician to treat the patient to create such a relationship. Gross v. Burt, 149 S.W.3d 213, 221 (Tex.App.--Fort Worth 2004, pet. denied); Majzoub v. Appling, 95 S.W.3d 432, 436 (Tex.App.--Houston [1st Dist.] 2002, pet. denied); Lection, 65 S.W.3d at 705.

Texas courts have recognized the existence of the nurse-patient relationship but have not written extensively about how it is created in the context of a medical malpractice claim. See Lunsford v. Board of Nurse Examiners for the State of Texas, 648 S.W.2d 391, 395 (Tex.App.--Austin 1983, no writ); Childs v. Greenville Hospital Authority, 479 S.W.2d 399, 401-02 (Tex.Civ.App.--Texarkana 1972, writ ref'd n.r.e.). Citing Lunsford, Appellant suggests that Mijares' duty to act according to the applicable standards of care arises from the mere fact that she possesses a nursing license.

Estrada v. Mijares, (Tex. App. - El Paso, 2013)

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