Under Texas law, hospital emergency room medical malpractice cases are tough. Some are impossible. With the right evidence, though, others can be pursued.
The reason for the challenging complexity lies in the Texas tort reform statute, Texas Civil Practice & Remedies Code Section 74.153. This law elevates the standard of proof required by hospital emergency room cases to willful and wanton negligence.
Texas appellate courts have interpreted that nonsensical phrase to be equivalent to gross negligence. That means that an emergency physician, provider, or nurse has to have actual knowledge of signs, symptoms, or information that pose an extreme degree of risk to the patient but proceeded with conscious indifference to the patient’s safety.
From a practical perspective, this means that if an ER physician documents a completely normal history and exam—even if it’s inaccurate—there’s probably no way to proceed with a medical malpractice claim. That’s because there’s probably no way to prove that the ER physician had actual knowledge of anything that posed a serious risk to the patient.
The same would be true for a radiologist who is interpreting a CT scan based on the physician’s order under the stroke protocol. Let’s say that the CT images show brain bleeding—which would be consistent with hemorrhagic stroke—but the radiologist reports that the CT is completely normal. There’s no evidence of actual knowledge on the part of the radiologist, so the claim likely fails.
Most medical and nursing experts understandably prefer to rely on medical records and diagnostic radiology images to form their opinions. However, when documentation has been sparse, missing, or suspect, we’ve been successful in obtaining other contemporaneous evidence of what was actually happening at the time the ER physicians and providers, or nurses were documenting that everything was perfectly fine. Here are some sources of evidence that experts can rely on:
• Video recordings
• Text messages or emails
A hard-working, experienced Texas medical malpractice lawyer can investigate hospital emergency room cases even when others turn them away. For a free consultation about your potential case, contact a top-rated Texas medical malpractice attorney.