For Texas emergency medical malpractice, it matters where the care began

As a Houston, Texas medical malpractice lawyer, one of the issues that I deal with routinely is emergency medical care. While many people may not appreciate the importance of the distinction between negligent emergency medical care and other types of medical care, Texas law treats them very differently.

In conjunction with the 2003 round of draconian tort reform aimed at medical malpractice cases, Texas implemented a new, high standard of proof that applies only to emergency medical care in certain settings.

In ordinary medical malpractice cases, a patient/plaintiff must meet the standard of proof of ordinary negligence. Ordinary negligence means that the healthcare provider acted in a way that was inconsistent with what a reasonably prudent provider would have done under the same or similar circumstances.                                                                     

Under Texas Civil Practice & Remedies Code Section 74.153, the standard of proof applicable to certain emergency room cases is harsh and higher. It applies to medical malpractice suits arising out of the provision of emergency medical care in a hospital emergency department, or obstetrical unit, or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.

Instead of a general negligence standard, plaintiffs bringing a medical malpractice lawsuit in the emergency medicine context defined by Section 74.153 must meet a standard of “wilful and wanton negligence.”

The Texas Supreme Court has interpreted the emergency standard to be equivalent of gross negligence. This requires proof that the healthcare provider had subjective, actual awareness of an extreme degree of risk to the patient, as well as conscience indifference to the risk.

Clearly, Texas elective officials who enacted and interpreted this law intended to make it extremely difficult for plaintiffs to bring medical malpractice cases against healthcare providers under the emergency standards defined by the new statute. This is why it is important for injured patients to hire an experienced medical malpractice lawyer who understands this complicated area of the law and how to meet the standard.

Freestanding ER cases

Since the new emergency medicine standard was implemented in 2003, there has been a proliferation of freestanding emergency rooms in Texas. When this law was written 15 years ago, these freestanding ERs did not even exist; thus, you will notice that they are not mentioned in the statute.

As a result, I have been able to argue successfully that the heightened standard of proof—wilful and wanton negligence—does not apply to emergency room care not provided at freestanding emergency rooms. Instead, we have pursued these cases under the normal, less-harsh general negligence standard, which is much more favorable to plaintiffs.

New Houston appellate court opinion

Since 2003, Defendants and their attorneys have been looking for any argument possible to expand the application of the emergency room standard to more and more types of healthcare. A recent appellate court opinion is a major setback for them and is a victory for patient safety and justice.

On March 1, 2018, the First Court of Appeals, in Houston, entered an opinion in the Christopher James Glenn, M.D. and Northeast OB/GYN Associates, L.L.P. v. Joseph Leal et al. case, which was on appeal from the 295th District Court, in Harris County, Texas, where the cause number was 2013-44705.

At trial, the jury considered evidence in this birth injury medical malpractice case and awarded judgment in favor of plaintiffs.

One of the issues that the defendants raised on appeal involves interpretation of Texas Civil Practices & Remedies Code Section 74.153. As discussed above, the statute defines the tough “wilful and wanton negligence” standard applicable to hospital-based emergency department care.

In the Glenn/Leal case, the expectant mother went to Kingwood Medical Center for an elective induction of labor. Her OB/GYN provider was Dr. Christopher Leal.

At the trial court level, the judge agreed with the plaintiffs’ argument that there had to be “evaluation or treatment of a patient in a hospital emergency department,” before Section 74.153 and its “wilful and wanton negligence” standard applied.

The appellate court paraphrased the plaintiffs’ argument, stating, “In other words, obstetrical deliveries that began in an emergency room, but conclude in an obstetrical unit, would trigger application of the statute, but a scheduled delivery that begins in an obstetrical unit, but later developed into an emergency would not.”

In reviewing the case, the First Court of Appeals went through a dizzying analysis of the language used in the statute, applying different rules of statutory interpretation to the poorly-worded law.

The court borrowed analysis from a similar Fort Worth Court of Appeals opinion, noting that “the legislature was not concerned as much about where the patient ended up receiving the medical care as how the patient got there.”

The Houston appellate court then concluded that the heightened requirement of “wilful and wanton negligence” does not apply when a patient’s treatment began as an elective induction in the obstetrical unit by her treating physician and develops into an emergency during the course of the delivery. Instead, the emergency treatment standard is only triggered when the patient was evaluated or treated in a hospital emergency department immediately prior to receiving the emergency medical care.

We are here to help

If you or a loved one has been seriously injured as a result of emergency room or other medical care, call the experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, at 281-580-8800, for a free consultation about your potential case.


Robert Painter is an attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical malpractice and wrongful death lawsuits against hospitals, doctors, OB/GYN physicians, anesthesiologists, surgeons, and other healthcare providers. He is a frequent writer and speaker on topics related to healthcare and medical negligence. He previously served as editor-in-chief of The Houston Lawyer magazine and currently serves on the editorial board of the Texas Bar Journal.

Robert Painter
Article by

Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys 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 for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.