Law School Case Brief
Providence Hosp. v. Truly - 611 S.W.2d 127 (Tex. Civ. App. 1980)
The provision for trebling actual damages under § 17.50(b)(1) of the Texas Deceptive Trade Practices Act, Tex. Bus. & Com. Code Ann. § 17.14 et seq., is mandatory.
During the course of cataract surgery, a patient's eye was injected with a fluid that was contaminated. The patient and her husband filed a negligence action against hospital. The patient also filed an action under the Texas Deceptive Trade Practices Consumer Protection Act based upon breach of implied contractual warranty. The jury failed to find the hospital guilty of negligence, but found in favor of the patient on the deceptive trade practice claim. The trial court awarded patient with actual damages, trebled as required by the Act, and attorneys' fees. The case was appealed.
Did the court err in entering judgment in favor of the patient under the Texas Deceptive Trade Practices Consumer Protection Act?
The court affirmed judgment in favor of the patient and her husband in the action against the hospital under the Texas Deceptive Trade Practices Consumer Protection Act. The evidence was sufficient to establish that there was a sale of the drug by the hospital and that the hospital was a seller within the meaning of the Act. The court rejected the hospital's argument that it was a health-care provider of medical services and not a seller of the drug within the meaning of the applicable statutory provisions. The trial court correctly trebled actual damages before allowing credit for settlement from manufacturer.
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