Texas Bucks the Trend - No Cause of Action for Lost Chance of Survival in the Medical Malpractice Context: Kramer v. Lewisville Memorial Hospital
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Jennie Kramer visited her gynecologist in August 1985 complaining of unusual discharges and intermittent bleeding. At that time, her doctor informed her that she tested negative for cancer. Her irregular bleeding continued, but on two subsequent visits to another doctor in November and December, Ms. Kramer was again informed that she did not have cancer. During February of 1986, after continued bleeding, Ms. Kramer detected a hard spot in her vagina. She returned to the second doctor a third time, at which time she was diagnosed with cancer. In spite of subsequent exploratory surgery and chemotherapy, Ms. Kramer died on October 31, 1986. Ms. Kramer's husband, Stephen, brought suit against Lewisville Memorial Hospital8 under the Wrongful Death Act and the Survivorship Statute." The trial court refused the Kramers' requested jury instructions on the lost chance doctrine, and the jury found that Ms. Kramer's death was not caused by the defendant's negligence. The Fort Worth Court of Appeals affirmed the trial court's refusal of the requested jury instructions on lost chance, reasoning that the lost chance doctrine had not been clearly recognized in Texas, and that such decision was best left to the legislature or to the Texas Supreme Court. The Texas Supreme Court affirmed in an opinion written by Chief Justice Phillips. Over the dissent of three justices, the Kramer majority held that Texas did not recognize a cause of action for lost chance of survival under the Wrongful Death Act, the Survivorship Statute, or the common law.
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