Chief Justice Jimmy Blacklock
The Texas Supreme Court has granted a physician’s petition for writ of mandamus to compel a trial court to vacate its order granting a new trial where the jury returned an 11-1 defense verdict.
In re Leo Lapuerta, M.D., F.A.C.S., and The Plastic Surgery Institute of Southeast Texas, P.A. (No. 24-0879; April 10, 2026) stemmed from a health care liability claim against a plastic surgeon regarding the treatment of a severely injured finger. After a battle of experts, a jury returned a defense verdict by an 11-1 vote. Initially, the trial court rendered a take-nothing judgment for the physician. The jury charge contained an instruction stating that Plaintiff’s finger had to have a greater than 50% chance of survival if reasonable medical care had been provided by the physician. Plaintiff objected to the instruction, but the trial court overruled it. There was some confusion as to whether the charge related to the “whole finger” or “partial finger,” but the trial court declined to comment further on the charge. After verdict and judgment for the physician, Plaintiff moved for a new trial based on the confusion about the “loss chance” charge. Based on a letter from the single dissenting juror, the trial court granted the motion. After the Houston [1st] Court of Appeals denied mandamus relief, the physician petitioned SCOTX.
In an opinion by Chief Justice Blacklock, SCOTX granted mandamus relief. Although trial courts have “broad discretion” to grant new trials, the Court has “often held that mandamus relief is available when a trial court abuses its discretion by granting a new trial on legally improper grounds” (citation omitted). Indeed, the Court went on, “disregarding a jury’s verdict is an unusually serious act that imperils a constitutional value of immense importance—the authority of a jury” (citation omitted).
First addressing the juror’s letter to Plaintiff’s counsel and the court, the Court observed that the Rules of Evidence “reinforce the strict prohibition on post-trial input from jurors.” TRE 606(b)(1). Texas Rule of Civil Procedure 327(b) likewise bars a juror from making any affidavit or statement about a matter “occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict concerning his mental processes ….” The only exception to this rule allows a juror to testify “whether any outside influence was improperly brought to bear upon any juror.” When plaintiff’s counsel attached the dissenting juror’s letter to his motion for a new trial, he “squarely violated these basic rules shielding the contents of jury deliberations from judicial consideration.” But since the trial court’s new trial order didn’t rely on the letter, the Court didn’t need to decide whether this “gross violation of the rises against divulgence of jury deliberations required denial of the motion irrespective of its other merits.” (Based on the tone of the Chief Justice’s admonition, we think the Court would probably have ruled that it did.)
Turning to the trial court’s grounds for granting the new trial motion, the Court found that none of them were legally defensible. First, the trial court erred by stating that “Texas law does not recognize the ‘lost chance of survival’ as a valid principle of liability.” In fact, the trial court cited as authority that SCOTX had rejected that principle in a case in which the Court held just the opposite, that is Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397 (Tex. 1993). “Thus, if the evidence of loss of chance is contested, as it was here,” stated by the Court, “not giving the instruction may be reversible error; giving it is certainly not grounds for a new trial.” Though Kramer held that there is no separate cause of action for loss of chance of survival, it reinforced “the doctrine’s continuing validity as a rule of liability in medical negligence cases.”
Next, the trial court seemed to think that the “loss of chance” doctrine, if it existed, was only available in death cases. The court relief on the Pattern Jury Charges, which “at the time of trial advised that a ‘loss of chance of survival’ instruction” was so limited (this commentary has since been deleted). But as the Court pointed out, “the principle is applicable to the ‘loss of chance of survival’ of a finger just as it is to the ‘loss of chance of survival’ of a person.” This makes perfect sense because “the doctrine derives from the basic requirement that the plaintiff prove the defendant’s negligence more likely than not caused the injury.” Additionally, the only evidence of confusion about this part of the charge—the jury’s question to the judge—was entirely insufficient to support a finding that the charge probably caused the rendition of an improper judgment. Indeed, “[o]nly in the improper jury letter, which cannot be considered, do we find an indication that the jury settled on considering only the whole finger’s chance of survival.” And, to put a finer point on it, the Court observed that Plaintiff opposed the charge in the first place, and when the jury asked about the whole or partial finger, opined that the charge referred to the whole.
In any event, “[n]one of the other medical expert witnesses or treating physicians testified that a partial amputation was ever a viable option.” Plaintiff himself at first refused to follow the physician’s recommendation to amputate the finger. The evidence also showed that Plaintiff failed to “care for the wound and keep it clean, as he was instructed to do, so as to maximize his chances of saving some or all of the finger.” In short, the jury had plenty of evidence to support its conclusion that the physician was not negligent. Finally, the Court rejected the trial court’s erroneous finding that the charge misstated the law of proximate cause. It granted the writ and directed the trial court to vacate its order and render judgment based on the jury’s verdict.
