After the latest round of Texas medical malpractice tort reform was enacted in 2003, the word spread that there was a tough new standard of proof for emergency room cases.
Instead of having to prove by a preponderance of evidence—meaning more likely than not—that a deviation from the standard of care by a physician, hospital, or healthcare provider caused patient harm, the legislature created a new standard called willful and wanton negligence.
According to the statute, as interpreted by the Texas Supreme Court, willful and wanton negligence is equivalent to gross negligence. It has two component parts, one that is subjective and the other that’s objective. The subjective component requires actual knowledge by the defendant of a factor that poses an extreme degree of risk to the patient. The objective component requires showing that despite having the actual knowledge, the defendant proceeded in a matter that placed the patient in an extreme degree of risk.
The willful and wanton negligence ER law has left a misimpression with many people, including lawyers who don’t routinely handle medical negligence cases, that it’s not even worth considering filing a lawsuit involving emergency room (ER) medical malpractice.
Although there’s no doubt that the Texas Medical Liability Act has tighten the reins on the emergency medicine malpractice cases that to proceed, here at Painter Law Firm we will continue to review and handle ER cases are regular basis.
While the question of whether an ER malpractice claim is viable under Texas law is specific to the facts of each case, here are some of the factors that we look at:
• Did the care happen at a hospital ER or freestanding ER? When the tort reform statute was enacted, freestanding ERs did not exist. Therefore, the statute only refers to hospital-based ERs. Some appellate courts have determined that the willful and wanton negligence standard doesn’t apply to freestanding ERs.
• Was the care involved bona fide emergency care? Many patients use emergency rooms for primary care. The statute expressly excludes application to care that’s unrelated to a medical emergency.
• Does the claim involve care that was provided after the patient was stabilized and was receiving care or treatment in a non-emergency patient? The statute also excludes application to this type of situation.
• Was the emergency medical care necessitated by the act or omission of a physician or health care provider? This scenario is also excluded by the statute.
• If none of these factors apply, then we delve into the medical records to analyze progress, consultation, and nursing notes for evidence that shows subjective awareness of a potentially dangerous finding or suspicion that should have triggered an assessment or workup that didn’t occur.
If you’ve been seriously injured because of poor emergency room care in Texas, then contact an experienced, top-rated experienced Houston, Texas medical malpractice lawyer for a complimentary evaluation of your potential case.
