In Hodgkins v. Bryan, 99 S.W.3d 669, 675 (Tex. App.--Houston 14th Dist. 2003, no pet.) the Court affirmed the trial court's granting of a summary judgment based on the loss of chance doctrine even though the plaintiff argued that he was not seeking recovery for the lost chance of survival. Hodgkins, 99 S.W.3d at 674.
In rejecting the plaintiff's argument, the Court stated: "regardless of whether appellant did not specifically plead a lost chance of survival cause of action, he cannot show proximate cause unless he presents more than a scintilla of evidence that Ms. Hodgkins had a greater than fifty percent chance of survival had the malpractice not occurred." Id.