Texas Supreme Court opinion changes birth injury standard of proof

I have always felt that punctuation is under-appreciated. That’s probably the main reason that I am devoted to the Oxford comma.

In December 2018, though, punctuation took center stage in a significant Texas Supreme Court opinion that changed the landscape for birth injury medical malpractice cases. The case is styled Texas Health Presbyterian Hospital of Denton v. D.A., No. 17-0256, 2018 WL 6713207 (Tex. Dec. 21, 2018). In a permissive interlocutory appeal, the court considered the question of whether the willful and wanton negligence standard applies to emergency care in a hospital obstetrical suite, when the patient was not admitted through a hospital emergency room.


Background facts

The case arose from a labor and delivery at Texas Health Presbyterian Hospital of Denton. The mother was admitted for a routine planned induction of labor at 39 weeks gestation. After she was started on Pitocin, her labor initially looked smooth. By the time of delivery, though, the baby was not properly passing through the birth canal.

The obstetrician used forceps to deliver the baby’s head, but in the process the baby’s shoulder lodged behind the mother’s pelvis, a condition called shoulder dystocia. Dr. Wilson tried other maneuvers and ultimately reached into the birth canal and physically pulled the baby’s arm across his chest, which knocked the baby’s shoulder out of its socket.

As in many shoulder dystocia cases, this baby experienced nerve injuries to the brachial plexus, which was the basis of the parents’ lawsuit against the obstetrician, the obstetrical practice group, and the hospital. The plaintiffs alleged that the obstetrician and the hospital’s labor and delivery nurse were negligent during the labor and delivery, causing their baby’s shoulder to become dislodged.

General negligence or willful and wanton negligence?

Texas Civil Practice & Remedies Code Section 74.153, the emergency medicine statute, elevates the standard of proof from general negligence to willful and wanton negligence if the claim involves 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.”

You may have noticed that the quoted portion of the statute contains no punctation until the end. That was significant in the Texas Supreme Court’s decision-making.

The plaintiffs (appellees) argued that the willful and wanton negligence standard only applied if the emergency obstetrical care at issue occurred “immediately following the evaluation or treatment of [the] patient in a hospital emergency department.”

The defendant (appellant) obstetrician took the opposite approach, arguing that the only relevant issue was whether bona fide emergency care was provided in the obstetrical unit. In other words, the statute did not distinguish between patients who entered the obstetrical unit through the emergency room and those who did not.

The court agreed with the obstetrician, ruling that the statute was unambiguous and that the phrase “immediately following the evaluation or treatment of a patient in a hospital emergency department” only modifies “surgical suite.”

Full employment for appellate lawyers

I expect that virtually every birth injury defendant in current or future medical malpractice cases will plead that the willful and wanton negligence standard applies.

Many medical malpractice lawyers believe that the Texas Supreme Court’s opinion created more questions than it answered. On March 29, 2019, the court denied a motion for rehearing, in which the appellees (trial court plaintiffs) sought to narrow the scope of the opinion. It will be interesting to see the flurry of cases that are likely to go up on appeal all over the state to figure out the boundaries of the Texas Health Presbyterian Hospital of Denton case.

This is clearly a game-changing opinion that is equally lamented by plaintiffs and patient safety advocates and celebrated by healthcare providers.


This article was originally published in The Houston Lawyer magazine, Vol. 56, No. 6, May/June 2019.

Robert Painter
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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.