In Austin Periodontal Associates, Inc. v. Husak (No. 03-07-00125-CV), a pre-House Bill 4 dental malpractice case, the Third Court of Appeals has affirmed a $503,923 judgment rendered after a jury trial. The dentist and hisemployer challenged the judgment on several grounds, most of which involved evidentiary complaints. This decision is noteworthy, however, because the trial court refused the defendants’ proposed "bad result" instruction under former Article 4590i, Section 7.02:
A finding of negligence may not be based solely on evidence of bad result to the patient in question, but such a bad result may be considered by you, along with other evidence, in determining the issue of negligence; you shall be the sole judge of the weight, if any, to be given any such evidence.
Section 7.02 was limited to jury trials "involving a health care liability claim against a physician or hospital." The court of appeals concluded that no abuse of discretion occurred in Husak because the dentist presented no evidence that he was a "physician," and his employer presented no evidence that it was a "hospital," as the former statute defined those terms.
The current version, Section 74.303(e) of the Civil Practice and Remedies Code, mandates a "bad result" instruction in "any action on a health care liability claim that is tried by a jury." The jury may or may not have reached the same result had it been instructed under the current law, but the trial court could not have refused the instruction.