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At what stage of litigation must a plaintiff show willful and wanton negligence in a Texas emergency room malpractice case?

Bona fide emergency care in a hospital ER is subject to a heightened standard of proof

Emergency room (ER) physicians, nurses, and other providers have a complex job. When dealing with bona fide emergency medical situations, they sometimes have to make split-second decisions without the benefit of time to think and deliberate or to collect all of the available information.

That’s why Texas law provides hospital ER physicians and healthcare providers with a special accommodation concerning medical malpractice claims. Texas Civil Practice & Remedies Code Section 74.153 sets a higher standard of proof for a patient’s claims, called willful and wanton negligence.

What’s required to prove a hospital ER malpractice claim in Texas?

The Texas Supreme Court has interpreted that rather nonsensical phrase to be equivalent to gross negligence. That means that a willful and wanton negligence claim against a member of a hospital ER team must include proof that:

• Subjective element: The physician or health care provider had actual, subjective knowledge of facts that posed an extreme risk to the plaintiff/patient.

• Object development: Despite the actual, subjective knowledge, the physician or health care provider proceeded with conscious disregard to the risk posed to the plaintiff/patient.

There’s no doubt that this higher standard of proof means that some cases of hospital ER malpractice are simply nonviable under Texas law. For example, let’s say that a neuroradiologist misinterprets an MRI scan of the brain as completely normal, but the images actually show a cerebrovascular accident. There is no actual, subjective knowledge, so a patient’s medical negligence claim would fail under the willful and wanton negligence standard.

That doesn’t mean that every Texas hospital ER claim is barred, though—contrary to the popular belief promoted by the tort reform crowd, and even bought into by some attorneys who lack experience in Texas medical malpractice claims.

When is proof of willful and wanton negligence required?

Another accommodation for physicians and healthcare providers as a whole is found at Texas Civil Practice & Remedies Code Section 74.351. The statute requires medical malpractice plaintiffs to serve preliminary medical expert reports early in litigation (within 120 days of each defendant filing an original answer lawsuit) that detail the applicable standards of care, how they were violated and by whom, and how such violations proximately caused harm to the plaintiff.

The defendant has 21 days after being served with a medical expert report to file objections to its efficiency in the statute. If a plaintiff doesn’t meet the deadline or the trial court makes a final ruling that a medical expert report doesn’t pass muster under the statutory requirements, then the judge must dismiss the case and enter an order requiring the plaintiff to pay the defendants attorney’s fees.

An opinion from the Fort Worth Court of Appeals very capably addresses the difference between the ER standard of proof of willful and wanton negligence and the standard of care requirement for preliminary expert reports. The case is styled Benish v. Grottie, 281 S.W.3d 184 (Tex. App.—Fort Worth 2009, pet. denied). You can read the opinion here.

In the case, two parents filed a lawsuit against a nurse practitioner and other healthcare providers who were involved in the care of their 22-month-old daughter at Nocona General Hospital.  Just 12 hours after being discharged from the hospital, the infant died.

To comply with the statutory report requirement, the plaintiffs timely served expert reports from a board-certified emergency physician and a nurse practitioner. The defendants objected to the reports because their discussions of standard of care violations were not couched in the terms of willful and wanton negligence.

The trial court denied the defense objections and motions to dismiss, which were brought up on appeal to the Fort Worth Court of Appeals. The appellate court discussed that Section 74.153 “sets for the standard of proof at trial that is required in a health care liability claim arising out of the provision of emergency medical care. . . . An expert report, however, is statutorily required to provide only a summary of the expert’s opinions regarding the applicable standards of care. . . .”

The court ruled that, “Section 74.153’s statutorily created standard of proof and the applicable medical standards of care are not the same thing.”

Thus, the willful and wanton negligence standard of proof is for trial, not the preliminary expert report stage of litigation.

If you’ve been seriously injured because of concerning emergency room care in Texas, then contact an experienced, top-rated Texas medical malpractice lawyer for a free consultation about your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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