In Re Leo Lapuerta, M.D., F.A.C.S., and the Plastic Surgery Institute of Southeast Texas, P.A.

Supreme Court of Texas
                            ══════════
                             No. 24-0879
                            ══════════

   In re Leo Lapuerta, M.D., F.A.C.S., and The Plastic Surgery
               Institute of Southeast Texas, P.A.,
                                Relators

   ═══════════════════════════════════════
           On Petition for Writ of Mandamus
   ═══════════════════════════════════════

                      Argued December 4, 2025

      CHIEF JUSTICE BLACKLOCK delivered the opinion of the Court.

      Ordering a new trial in contravention of a jury verdict is “an
unusually serious act.” In re Rudolph Auto., LLC, 674 S.W.3d 289, 302
(Tex. 2023). An order granting a new trial must therefore provide a
lawful, reasoned basis for so doing, which both facilitates appellate
review and, ideally, demonstrates that the court’s action reflects more
than mere dissatisfaction with the verdict. See In re Columbia Med. Ctr.
of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 212–13 (Tex. 2009).
Although the power to grant a new trial lies within the court’s discretion,
if the reasons given are “predicated on legal error or lack[] record
support,” an appellate court should grant mandamus relief to restore the
jury’s verdict and avoid wastefully duplicative proceedings. Rudolph,
674 S.W.3d at 302.
        After a jury trial in this personal injury suit resulted in an 11–1
defense verdict, the district court ordered a new trial for reasons that,
as explained below, misperceived the law governing liability for medical
negligence. Apart from that error, reversible in its own right, the new
trial motion attached a letter from the lone dissenting juror purporting
to reveal the contents of the jury’s deliberations, which the plaintiff
offered to show that the jury had been confused by the charge. Although
the new trial order did not specifically rely on the juror’s letter, we will
not ignore the possibility that this flagrantly improper evidence
influenced the outcome.        The petition for writ of mandamus is
conditionally granted, and the district court is directed to render
judgment based on the verdict.
                                     I.
        Jose Torres suffered a severe injury to his right index finger in a
bandsaw accident. Leo Lapuerta, a plastic surgeon, treated Torres.
Lapuerta described the tip of the finger as “hanging by a thread.”
Because of the injury’s severity, Lapuerta recommended amputation of
the finger. Torres refused, and Lapuerta attempted a salvage procedure
that included cleaning and bandaging the finger. Torres had several
follow-up visits with Lapuerta. Lapuerta recommended and performed
skin flap surgery on July 11, 2016, which included a skin graft covering
two fingers because of the index finger’s skin condition and exposed
bone.
        Torres later saw a different surgeon, Dr. Henry, who diagnosed
osteomyelitis, a bone infection. Henry tried treating the injury with
debridement—the removal of damaged tissue and foreign debris—but




                                     2
ultimately amputated the finger. He performed a “ray amputation”
resulting in the removal of the entire index finger and the metacarpal
bone that extends from the base of the index finger to the wrist bones.
       Torres sued Dr. Lapuerta. 1 He claimed that Lapuerta’s negligent
treatment of the wound caused the infection, which necessitated the ray
amputation.     Lapuerta defended his treatment, contending that the
initial saw injury precluded any possibility of saving the finger.
Lapuerta further alleged that Torres’s negligent care for his finger after
the accident—poor hygiene, smoking, going on vacation during
treatment, and failing to participate in physical therapy—contributed to
the finger’s deteriorating condition. At trial, the jury heard testimony
from Torres, Dr. Lapuerta, Dr. Henry, and medical expert witnesses on
both sides.
       Several doctors testified about the chances of saving the finger.
Dr. Lapuerta testified that the severity of the injury meant there was
less than a 10% chance of saving the finger. Dr. Hua, a hand surgeon,
testified that there was a 10–20% chance of saving the finger. Torres’s
expert, plastic and reconstructive surgeon Dr. Robison, offered an
essentially identical prognosis—“salvaging the finger as a functional
finger [was] 10 percent or less.”
       The jury was asked one simple question: “Did the negligence, if
any, of those named below proximately cause the injury in question?”
“[T]hose named below” were Lapuerta and Torres, and the jury

       1 Torres brought identical claims against Dr. Lapuerta and his
professional association, The Plastic Surgery Institute of Southeast Texas, P.A.
The parties make no distinction between these defendants, and we refer to
them collectively as Lapuerta or Dr. Lapuerta.




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answered no as to both. The verdict was 11–1. Based on this answer,
the court initially rendered a take-nothing judgment for Lapuerta.
       The present dispute stems primarily from an introductory
instruction contained in the jury charge.            In addition to routine
instructions describing negligence, proximate cause, and other terms,
the charge instructed as follows:
       You are instructed that JOSE TORRES’ finger must have
       had a greater that fifty percent (50%) chance of survival if
       reasonable medical care had been provided on or around
       July 11, 2016 for the negligence of LEO LAPUERTA, M.D.,
       F.A.C.S. to be a proximate cause of the injury to Jose
       Torres.
       This “loss of chance” instruction was requested by Lapuerta. 2
Torres filed written objections to the instruction. The objections were
that the instruction should not be included because “(1) the defendant
did not plead it, (2) the case was not tried on that theory, . . . (3) the jury
questions do not rely on it,” and (4) under the Pattern Jury Charges,
such an instruction should only be given in cases of the plaintiff’s death
or impending death. The court overruled the objections and submitted
the instruction to the jury.
       During deliberations, the jury sent out the following question:
“Does the charge relate to the whole finger or partial finger?” Counsel
for Torres said, “The whole—I think that’s what the charge—the


       2 See Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851,

859–60 (Tex. 2009) (providing text of similar instruction and explaining that
such a “loss of chance” instruction reflects “standards [that] bar recovery by a
patient if a condition preexists the negligence of a health care provider and at
the time of the negligence, the condition resulted in the patient having a 50%
or less chance of cure or survival”).




                                       4
definition is asking for, the whole. The whole finger.” Counsel for
Lapuerta advised, “I don’t think the Court can respond to that.” The
court advised the jury as follows: “The Court, under the law, is not
permitted to answer the question that you have presented. Please refer
to and follow the instructions already given to you and continue in your
deliberations.”
      After the verdict and judgment in Lapuerta’s favor, Torres moved
for a new trial. The motion restated Torres’s objections to the loss of
chance instruction. It also asserted that the instruction had probably
resulted in the rendition of an improper judgment by causing jury
confusion on a critical issue. See TEX. R. APP. P. 44.1(a)(1), 61.1(a). The
motion attached a letter the lone dissenting juror sent to Lapuerta, with
a copy to Torres’s counsel, after the trial. The letter offered a detailed
view of the trial from the juror’s eyes. He recounted his own medical
journey through three surgeries for facial lacerations, hip resurfacing,
and an elbow infection. He stated that his own experiences did not allow
him to “come to terms with” Lapuerta’s treatment of Torres.            He
questioned whether Torres was “made fully aware of partial amputation
as an option.” He then described the jury deliberations as follows:
      Lastly, I don’t know how much the other jurors shared with
      you re the deliberation, but in my opinion, there wasn’t
      any. The charge was basically structured as “was the
      conduct responsible for >50% probability for the loss of the
      finger.” We deliberated on whether this meant the entire
      finger “or portion thereof.” Our request to the court for
      clarification resulted in the answer: “that is for you to
      decide.” Eleven jurors chose this to mean the entire finger,
      I chose “the finger or portion thereof.” These three missing
      words made the previous three day trial irrelevant.




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      There was unanimous agreement there was not a >50%
      chance the entire finger could be saved. The foreman called
      for a vote, and we were done in minutes. My only option to
      express my objection was to refuse to sign the agreement.
      Lapuerta responded to the motion for new trial. The district court
held a hearing and signed a one-sentence order granting the motion.
Lapuerta sought mandamus relief in the court of appeals. Among other
grounds for relief, he complained that the district court had not given
any reasons for granting the new trial. The district court promptly
signed an amended order providing seven reasons. The court of appeals
dismissed the first mandamus petition as moot. 2023 WL 5963228 (Tex.
App.—Houston [1st Dist.] Sept. 14, 2023).     Lapuerta filed a second
mandamus petition challenging the amended order.          The court of
appeals denied relief without analysis, 719 S.W.3d 595 (Tex. App.—
Houston [1st Dist.] 2024), prompting the mandamus petition now before
this Court.
                                  II.
      A writ of mandamus is available to correct a clear abuse of
discretion for which there is no adequate remedy by appeal.         In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004). In
general, there is no adequate remedy by appeal when a court
erroneously orders a new trial.     Rudolph, 674 S.W.3d at 298 n.5.
“Accordingly, the only question here is whether the challenged new-trial
order was an abuse of discretion.” Id. at 299 n.5. A trial court has no
discretion in determining questions of law or applying the law to the
facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). “Thus, a clear
failure by the trial court to analyze or apply the law correctly will




                                   6
constitute an abuse of discretion, and may result in appellate reversal
by extraordinary writ.” Id.
       We have often held that mandamus relief is available when a trial
court abuses its discretion by granting a new trial on legally improper
grounds. 3 The Court’s modern jurisprudence on this subject begins with
In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290
S.W.3d 204 (Tex. 2009). While noting that “trial courts have historically
been afforded broad discretion in granting new trials,” id. at 210, we
held that mandamus relief is available where a court grants a new trial
without offering sufficiently specific reasons for doing so, id. at 206,
212–13. Among the reasons we found mandamus to be an appropriate
remedy was the significance of the right to a jury trial, which can be
impaired when a trial judge disregards a jury verdict. Id. at 209. Our
more recent decision in Rudolph likewise observes that “disregarding a
jury’s verdict is an unusually serious act that imperils a constitutional
value of immense importance—the authority of a jury.” 674 S.W.3d at
302.
       A mandamus petition allows an appellate court to “review the
correctness of the stated reasons for granting a new trial” and to grant
relief if the stated reasons “lacked substantive merit.” In re Toyota
Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 757, 762 (Tex. 2013). The
appellate court “may conduct a merits review of the bases for a new trial
order” and may grant mandamus relief if the record does not support

       3 See Rudolph, 674 S.W.3d 289; In re Davenport, 522 S.W.3d 452 (Tex.

2017); In re Bent, 487 S.W.3d 170 (Tex. 2016); In re Toyota Motor Sales, U.S.A.,
Inc., 407 S.W.3d 746 (Tex. 2013); In re United Scaffolding, Inc., 377 S.W.3d
685 (Tex. 2012); Columbia Med. Ctr., 290 S.W.2d 204.




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the trial court’s reason for granting the new trial. Id. at 749. Put
differently, mandamus relief is appropriate when the court’s reason for
granting a new trial “is predicated on legal error or lacks record
support.” Rudolph, 674 S.W.3d at 302.
                                     A.
      Before turning to the reasons offered by the district court for
granting a new trial, we begin with a troubling aspect of this case’s
history. Among the foundational pillars of the Anglo–American legal
tradition is “the cardinal principle that the deliberations of the jury shall
remain private and secret.” United States v. Olano, 507 U.S. 725, 737
(1993) (citation modified) (quoting United States v. Va. Erection Corp.,
335 F.2d 868, 872 (4th Cir. 1964)). For obvious reasons:
      A juror may not testify as to any matter or statement
      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 in connection
      therewith, except that a juror may testify whether any
      outside influence was improperly brought to bear upon any
      juror. Nor may his affidavit or evidence of any statement
      by him concerning a matter about which he would be
      precluded from testifying be received for these purposes.
TEX. R. CIV. P. 327(b) (emphasis added). The Rules of Evidence reinforce
the strict prohibition on post-trial input from jurors:
      During an inquiry into the validity of a verdict or
      indictment, a juror may not testify about any statement
      made or incident that occurred during the jury’s
      deliberations; the effect of anything on that juror’s or
      another juror’s vote; or any juror’s mental processes
      concerning the verdict or indictment. The court may not
      receive a juror’s affidavit or evidence of a juror’s statement
      on these matters.




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TEX. R. EVID. 606(b)(1).
      Attaching the letter from the dissenting juror to Torres’s new trial
motion squarely violated these basic rules shielding the contents of jury
deliberations from judicial consideration. The fundamental obligation
to respect the secrecy of jury deliberations is not binding on Texas judges
and lawyers merely because it is restated in the modern rules of civil
procedure and evidence. It is instead compelled by the nature and
history of the jury system we have inherited. It is binding because it is
indispensable to the maintenance and proper functioning of that
system—not merely because it is codified in the rules. Neither this
dissenting juror’s letter nor anything like it has any place in a Texas
courtroom.
      Fortunately, the district court’s new trial order does not rely on
the letter. Nor does Torres rely on the dissenting juror’s input in this
Court. He does, however, rely on a theory of juror confusion that closely
tracks the letter’s allegations. Given the significant thematic overlap
between Torres’s arguments for a new trial and the dissenting juror’s
statements about the jury’s deliberations, we cannot ignore the
possibility that the juror’s improper input is what prompted the new
trial motion and ultimately the new trial order. At the very least, that
possibility presents itself as a valid inference from this record.
      Because the new trial order fails on other grounds—and because
Lapuerta does not urge the point—we have no occasion to decide
whether the new trial motion’s gross violation of the rules against
divulgence of jury deliberations required denial of the motion
irrespective of its other merits. The use of evidence of this nature to




                                     9
attack a jury verdict is no mere technical violation of the rules. It
purposefully undermines the secrecy that is foundational to the jury
system. Such evidence may introduce error into the proceedings so
fundamental that the party using the evidence must forfeit the relief it
requests. Although we could answer that question in a future case, we
hope never to have the need.
                                  B.
      The district court offered seven grounds for granting a new trial.
None of them, “taken individually or collectively,” Rudolph, 674 S.W.3d
at 296, amounted to legally defensible grounds for a new trial under
these circumstances. The seven grounds were:
      1. The Court finds that there was charge error related to
         the submission of the [loss of chance] instruction.
      2. The Court finds the Doctrine of Lost Chance of Survival
         is not a part of Texas Common Law and has been
         specifically rejected by the Texas Supreme Court
         pursuant to Kramer v. Lewisville Mem’l Hosp., 858
         S.W.2d 397, 407 (Tex. 1993).
      3. The Court finds that while the offered instruction was
         intended to be an explanation of proximate cause, it
         improperly referenced a doctrine that has been rejected
         by the Texas Supreme Court.
      4. The Court finds that the instruction probably caused
         the rendition of an improper judgment based on the sole
         question asked by the jury in this matter which
         requested clarification of what the instruction meant
         when it referenced “the finger.”
      5. The Court finds that there are no factually analogous
         cases where such an instruction has been offered.
      6. The Court is not persuaded by the defendant’s
         arguments that the Court should use the instruction as
         it is found in the Pattern Jury Charge Comments but




                                  10
          ignore the commentary as to when it is proper to use the
          instruction.
       7. The Court finds that the instruction fundamentally
          altered the Pattern Jury Charge Causation definition so
          that the concept of “a” proximate cause versus “the”
          proximate cause was excluded from jury consideration
          by implying that there was only one cause of the
          ultimate amputation in this matter and denying the
          fact that there can be more than one proximate cause of
          an injury.
       These seven grounds can be divided into four categories, which
we address in turn.
                                     1.
       The first, second, third, and fifth grounds reflect the court’s
mistaken view that Texas law does not recognize the “lost chance of
survival” as a valid principle of liability. To the contrary, it is well
settled that if a condition pre-existing the defendant’s negligence gave
the plaintiff less than a 50% chance of survival, recovery against the
defendant is barred. Columbia Rio Grande Healthcare, L.P. v. Hawley,
284 S.W.3d 851, 860 (Tex. 2009); Park Place Hosp. v. Est. of Milo, 909
S.W.2d 508, 511 (Tex. 1995); Kramer, 858 S.W.2d at 400. This rule flows
naturally from the preponderance of the evidence standard, under which
the plaintiff must prove the defendant’s negligence more likely than not
caused the plaintiff’s injury. Kramer, 858 S.W.2d at 400; see also Milo,
909 S.W.2d at 511.
       Curiously, perhaps this Court’s clearest statement of the settled
principle of law that governs this very case comes from our decision in
Kramer, which the new trial order incorrectly portrays as having
“specifically rejected” the principle:




                                     11
      [W]here preexisting illnesses or injuries have made a
      patient’s chance of avoiding the ultimate harm improbable
      even before the allegedly negligent conduct occurs—i.e., the
      patient would die or suffer impairment anyway—the
      application of . . . traditional causation principles will
      totally bar recovery, even if such negligence has deprived
      the patient of a chance of avoiding the harm.
Kramer, 858 S.W.2d at 400. Failure to give an instruction to this effect
may be harmful because “[i]t asks too much of lay jurors, untrained in
the law, to distill the correct Texas legal standard for loss of chance from
the general proximate cause instruction given by the trial court.”
Hawley, 284 S.W.3d at 862. Thus, if the evidence of loss of chance is
contested, as it was here, not giving the instruction may be reversible
error; giving it is certainly not grounds for a new trial. Id.
      Kramer held that there is no separate cause of action for loss of
chance of survival, 858 S.W.2d at 398, 407, and perhaps the district
court misperceived this holding as a rejection of the doctrine altogether.
But as the quote above demonstrates, Kramer recognized and reinforced
the doctrine’s continuing validity as a rule of liability in medical
negligence cases, which none of our intervening decisions has
questioned. Far from abandoning Kramer’s statement of the rule, we
have at least twice relied on it, including as recently as 2009, for the
proposition that there is no liability for negligent medical treatment
“that decreases a patient’s chance of avoiding death or other medical
conditions in cases where the adverse result probably would have
occurred anyway.” Hawley, 284 S.W.3d at 860 (emphasis altered); Milo,
909 S.W.2d at 511 (emphasis added).




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                                    2.
      The sixth ground offered by the district court refers to the Pattern
Jury Charges, which at the time of trial advised that a “loss of chance of
survival” instruction is available only in cases involving the patient’s
death. 4 The court appears to have believed that submitting the charge
was error in any non-death case. Retreating from the view that Texas
law does not recognize the “loss of chance” doctrine at all, Torres
primarily contends in this Court that the doctrine is limited to death
cases. Torres is correct that our decisions in Kramer, Milo, and Hawley
all involved the patient’s death, which is perhaps why the Pattern Jury
Charges until recently limited the instruction’s application to death
cases. See STATE BAR OF TEXAS COMMITTEE ON PATTERN JURY CHARGES,
TEXAS PATTERN JURY CHARGES: MALPRACTICE, PREMISES & PRODUCTS
PJC 50.1 cmt. (2020). But our reasoning in each of those decisions
makes clear that, assuming it is appropriate to the particulars of the
case, a “loss of chance” instruction is no less available in an injury case
than it is in a death case.
      The passage quoted above from Kramer says this very plainly, as
do Hawley and Milo, which follow Kramer. The question is whether
“preexisting illnesses or injuries” made “avoiding the ultimate harm
improbable” such that the patient would have “die[d] or suffer[ed]
impairment anyway.” Kramer, 858 S.W.2d at 400 (emphasis added).

      4 The Pattern Jury Charges “are not themselves the law, and courts

must depart from a pattern jury charge when doing so is necessary to
accurately state the law or submit a question to the jury.” JNM Express, LLC
v. Lozano, 688 S.W.3d 327, 332 n.14 (Tex. 2024).




                                    13
The question arises regarding “a patient’s chance of avoiding death or
other medical conditions.”      Hawley, 284 S.W.3d at 860 (emphasis
altered); Milo, 909 S.W.2d at 511 (emphasis added). In other words, 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 equivalence is not merely dictated by precedent.            It is
compelled by the same reasoning that would animate a “loss of chance
of survival” instruction in a death case (or any other case). As noted
above, the doctrine derives from the basic requirement that the plaintiff
prove the defendant’s negligence more likely than not caused the injury.
Kramer, 858 S.W.2d at 400. This requirement—and the rules of liability
flowing logically from it—does not operate in a categorically different
way when the injury results in death rather than a consequence less
severe. In either instance, if there is better than a 50% chance that the
patient’s adverse outcome would have been no better if the doctor were
not negligent, it cannot be said that the doctor’s negligence more likely
than not caused the outcome. In such a case, the preponderance of the
evidence standard dictates that the doctor is not liable. Id. Texas law
recognizes this principle in medical negligence cases, and a jury
instruction to this effect, properly tailored to the facts of the case, should
generally be given when the nature of the case and the evidence support
doing so. The district court erred by concluding otherwise.
                                     3.
       The district court’s fourth justification for its new trial order
stated:
       4. The Court finds that the instruction probably caused
          the rendition of an improper judgment based on the sole




                                     14
          question asked by the jury in this matter which
          requested clarification of what the instruction meant
          when it referenced “the finger.”
       During deliberations, the jury sent out the following question:
“Does the charge relate to the whole finger or partial finger?” Apart
from the dissenting juror’s letter, which can play no role in the analysis,
this question—unanswered by the district court—is the record’s only
indication that confusion about the difference between the whole finger
and part of the finger may have affected the verdict. Of course, the mere
fact that the jury asked this question cannot, standing alone, support
granting a new trial. Jury questions about instructions are common and
do not, without much more, justify a decision to throw out the verdict.
       Torres argues that the “loss of chance” instruction was flawed
because it did not permit the jury to find negligence on the theory that
even though there was little or no chance of saving the whole finger,
Lapuerta’s negligence prevented Torres from pursuing a partial
amputation, which was to him a preferable outcome. Thus, as a fallback
to his argument that the “loss of chance” doctrine is entirely inapplicable
to this case, Torres contends that the particular “loss of chance”
instruction this jury was given lacked sufficient nuance or detail in light
of the facts of the case.
       This argument tracks the dissenting juror’s allegations of
confusion and disagreement in the jury room, which Torres disclaims in
this Court but which seems to have played no small role in bringing this
case to where we find it. Setting that aside, the jury’s question does not,
on its own, indicate that the jury took one view or another about the
difference between saving the whole finger and saving part of it.




                                    15
Perhaps the jury believed it could consider only the chance of saving the
whole finger. Perhaps it also considered the chance of saving the partial
finger. Neither its question nor its verdict provides any indication one
way or another. Only in the improper juror letter, which cannot be
considered, do we find an indication that the jury settled on considering
only the whole finger’s chance of survival.
      When the court consulted counsel for both sides about the jury’s
question, Torres’s counsel responded, “The whole—I think that’s what
the charge—the definition is asking for, the whole. The whole finger.”
Thus, although Torres’s theory now is that the jury should have
considered the chance of saving part of the finger, at the time of the
jury’s question his counsel apparently did not appreciate the distinction
and did not ask the court to instruct the jury to separately consider the
partial finger. Nor did Torres’s counsel argue at the charge conference
that the instructions should distinguish between the whole finger and
the partial finger.    He opposed the “loss of chance” instruction
altogether, but he never suggested it could be improved or clarified by
introducing the distinction he now urges.
      In the end, the instruction that was given referenced neither the
“whole” finger nor the “partial” finger. It did not foreclose the jury from
finding that Lapuerta’s negligence prevented the allegedly better
outcome of a partial amputation. The jury’s question suggests it may
have struggled over that issue, but we do not (and should not) know
whether it actually did or how any such struggle was resolved within
the jury room. Perhaps, had Torres argued for it, the instruction could
have been more fine-tuned to fit his theory that the partial finger could




                                    16
have been saved. But the question at this stage is not whether the
instructions were perfectly tailored to the particulars of the case—
especially in a way never urged by the complaining party. The question
is whether the defect in the instructions “probably caused the rendition
of an improper judgment.” TEX. R. APP. P. 61.1(a); Bed, Bath & Beyond,
Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006).
        In other words, we can assume Torres is correct that an ideal
instruction would have distinguished between the whole finger and the
partial finger. We can also, for the sake of argument, look past his
failure to ask for such a distinction, either at the charge conference or in
response to the jury’s inquiry. Even then, the question is whether this
evidentiary record compels the conclusion that the jury probably would
have answered differently if the instructions had explicitly embraced
the full finger vs partial finger theory of Lapuerta’s liability. It does not.
        Torres’s expert witness, Dr. Robison, testified that saving part of
the finger might have been possible and that a partial amputation was
arguably, from the patient’s perspective, a better outcome. The bulk of
the testimony was to the contrary. None of the other medical expert
witnesses or treating physicians testified that a partial amputation was
ever a viable option. Lapuerta testified that a partial amputation was
“very   questionable” because       the   finger had suffered a         “very
contaminated, nasty wound” and that he had only offered Torres the
options of trying to save or amputate the whole finger.           The other
treating physician, Dr. Henry, performed a ray amputation of the whole
finger and offered no testimony that a partial amputation was ever
possible.   Dr. Conoley, a radiologist, testified that he agreed with




                                     17
Dr. Lapuerta regarding amputation because the severity of the injury
meant that the blood supply was so compromised that “restoring
function to this finger is nearly zero.” Dr. Hua, a hand surgeon, testified
that at the time of Lapuerta’s first surgery on Torres’s hand there was
a 10–20% chance that the finger could be saved. Dr. Rensimer, an
infectious disease and internal medicine specialist, testified that “it was
clear from day one that the patient was going to lose this finger.” He
explained that the initial injury caused an impairment to the blood
supply and “the entire outcome of the finger was related to” this
“irreversible circulatory compromise.” In sum, none of the other five
doctors from whom the jury heard vouched for Robison’s view that a
partial amputation was, at any time, potentially a viable outcome.
      The jury also heard evidence that, as the treatment unfolded,
Torres would not have approved of a partial amputation even if such a
procedure was medically possible. Dr. Lapuerta repeatedly testified
that Torres “refused any type of amputation,” that he “was totally
absolutely against any amputation of any body part,” and that he “was
not interested in amputation, partial amputations or ray amputation at
any time during my treatment.”           Torres testified that during his
treatment by Lapuerta the option of a partial amputation never came
up. There was also extensive evidence of Torres’s failure 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.
      The jury thus had ample evidentiary basis to reach the result it
reached, irrespective of any distinction between the whole finger and the
partial finger. As Torres’s counsel conceded at oral argument, even a




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differently instructed “jury very well could have found that Dr. Lapuerta
was not negligent.” A new trial is “a last resort” where “a jury has
clearly departed from its function as a rational factfinder.” Rudolph,
674 S.W.3d at 305. This record provides no basis to conclude that “no
rational jury could have exercised its discretion as this jury did.” Id.
The district court therefore erred by concluding that failure to give a
more nuanced instruction “probably caused the rendition of an improper
judgment.” TEX. R. APP. P. 61.1(a).
                                    4.
      Finally, the seventh ground for the new trial order stated:
      7. The Court finds that the instruction fundamentally
         altered the Pattern Jury Charge Causation definition so
         that the concept of “a” proximate cause versus “the”
         proximate cause was excluded from jury consideration
         by implying that there was only one cause of the
         ultimate amputation in this matter and denying the
         fact that there can be more than one proximate cause of
         an injury.
      Reliance on this ground was error. Of course, an injury may have
more than one proximate cause. Werner Enters. v. Blake, 719 S.W.3d
525, 534–35 (Tex. 2025). The “loss of chance” instruction given to the
jury neither stated nor implied otherwise.        To the contrary, the
instruction states that Lapuerta’s negligence cannot “be a proximate
cause of the injury” unless the finger had a greater than 50% chance of
survival. The charge further reinforced the law of proximate cause by
correctly stating, at the end of the separate instruction on “ordinary
care,” that “[t]here may be more than one proximate cause of an event.”
As best we can tell, this ground reflects Torres’s position that the “loss
of chance” doctrine is altogether faulty—a proposition rejected by our




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precedent and by our reasoning above. Supra Part II.B.1. This ground
provides no support for the new trial order.
                                    III.
      Like any party, Torres was entitled to a fair trial, not a perfect
trial. The record indicates that he received one. None of the reasons
given by the district court, singularly or in combination, provide valid
grounds for ordering a new trial.
      The petition for writ of mandamus is conditionally granted. The
district court is directed to vacate its order granting a new trial and to
render judgment based on the jury’s verdict. We are confident the court
will comply, and the writ will issue only if it does not.



                                           James D. Blacklock
                                           Chief Justice

OPINION DELIVERED: April 10, 2026




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