The Texas Supreme Court recently issued an opinion in the medical malpractice case of Virlar v. Puente, a case involving a brain damage injury caused by a failure to properly manage the nutrition in a patient who had undergone gastric bypass. A couple major issues were presented to the court. One was whether a large settlement with the patient's family member should be credited to the defendants at trial, and whether the trial court was required to order periodic payments of future medical expenses as part of the judgment.
On the first issue, the court held that the settlement would be credited to the defendants at trial because in this particular case, there was no violation of the Texas' Open Courts Provision: "Because the application of Chapter 33 gives Puente a greater recovery than she would have obtained under the common law, she has not lost a common-law remedy. Thus, we need not address in this case whether or to what extent a reduction in an award of common-law damages due to statutory settlement credits would amount to withdrawal of a common-law remedy [and thus implicting the Open Courts Provision of the Texas Constitution]." It appears then that a challenge under the Open Courts Provision would exist if the damages resulting from application of Texas CPRC Chapter 33 would leave a lesser award of common-law damages to the claimant.
On the second issue, the court ruled that Chapter 74 requirements for periodic payments of future medical expenses allows the trial court to receive additional evidence to support the request for that, which the trial court did. However, the trial court awarded no future periodic payments but opted for a lump sum payment only. The case was remanded so the trial court could craft a future periodic payments schedule consistent with the guidelines described in the opinion.
Read the entire opinion by clicking here.
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