Well-funded and influential healthcare special interest groups have declared war on medical malpractice claims against hospital emergency room physicians and providers. Their lobbying efforts paid off. In 2003, as part of sweeping medical malpractice tort reform, special standards went into effect that apply to many claims involving hospital emergency room care.
In most Texas medical malpractice cases, the plaintiff has to prove general negligence. General negligence means that a physician, nurse, or other healthcare provider violated the standard of care, which is what a reasonably prudent provider would have done under the same or similar circumstances.
In hospital emergency room cases involving bona fide emergency care, the standard is now much higher. Plaintiffs must prove willful and wanton negligence, which the Texas Supreme Court has interpreted to be equivalent to gross negligence. We’ll get to that shortly.
From the many calls we receive at Painter Law Firm from potential clients, we know that many attorneys have chosen to shy away from even considering any case involving emergency medical care. To be sure, it’s not always realistic or possible to pursue every potential emergency medical malpractice claim successfully. But instead of declining all emergency medicine cases, our firm takes a step-by-step approach to analyze whether a potential claim may be successful.
Here are some of the factors that we consider.
Where did the emergency care occur?
When Texas Civil Practice & Remedies Code Section 74.153 (the tort reform statute) became law back in 2003, freestanding emergency rooms did not exist. They now dot the Texas landscape like bluebonnets.
The wording of the statute only references hospital emergency departments, not freestanding emergency rooms. As a result, some courts have held that under the plain wording of the statute freestanding emergency rooms don’t benefit from the willful and wanton negligence standard.
Was there bona fide emergency care?
As a former hospital administrator, I know that many patients use hospital emergency rooms for primary care. This type of medical care could be handled in a doctor’s office or clinic, and truly isn’t emergency care.
The draconian willful and wanton negligence standard only applies to bona fide emergency services. Texas Health & Safety Code Section 773.003 defines emergency medical care as:
Bona fide emergency services provided after the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in:
(A) placing the patient's health in serious jeopardy;
(B) serious impairment to bodily functions; or
(C) serious dysfunction of any bodily organ or part.
When evaluating a potential emergency medicine malpractice claim, it’s important to look at precisely what care was involved and whether it meets the definition of bona fide emergency services.
The dreaded willful and wanton negligence standard
As the earlier two points suggest, if the emergency care didn’t take place a hospital emergency room (ER) or wasn’t actually emergency care in the first place, there’s a good chance that the willful and wanton negligence standard doesn’t apply.
If the higher standard does, apply, though, it’s critical to carefully review the medical care that was provided. In many cases that we’ve handled, we were able to fit the claim within the willful and wanton negligence standard because of one entry in the medical records of just a few words.
Willful and wanton negligence requires the plaintiff to prove two elements.
One, the plaintiff must prove that the doctor or healthcare provider had subjective (actual) awareness of a sign, symptom, or condition that was dangerous to the patient. In my view, the best way to do that is through the medical records. In some situations, though, a plaintiff can produce evidence in the form of testimony of the patient or family member about what was communicated to or observed by the physician or healthcare provider.
Two, the plaintiff has to prove that the defendant objectively proceeded in a way that placed the patient in an extreme degree of risk.
This is a daunting challenge that can’t be met in some circumstances. It’s not impossible in every case, though. One ER case comes to mind that we favorably settled before trial for a client who was misdiagnosed and discharged from the hospital. The key issue came down to four words in the medical record documented by a neurologist. Those four words identified a neurological problem that should’ve triggered additional testing, which would have prevented the patient from being discharged home, where he had a massive stroke.
Common types of ER claims
A nationwide study of 10 years’ worth of closed medical malpractice claims provides insights on the most common factors and allegations in lawsuits against emergency physicians and providers.
The top three medical factors in emergency medicine malpractice claims include:
• Errors in diagnosis
• Improper performance of the procedure or part of the care
• Problems with laboratory or radiology follow-up or documentation
As a result of these lapses in emergency medical care, the most common three outcomes for patients include:
• Cardiac or cardiorespiratory arrest
• Acute myocardial infarction (heart attack)
• Occlusion and stenosis of cerebral arteries
If you or a loved one has been seriously injured because of bad emergency room care at a Texas hospital, then contact a top-rated, skilled Houston, Texas medical malpractice lawyer for help in reviewing your potential case.
