Texas Supreme Court opinion is bad news for babies and families in birth injury medical malpractice cases

Today, the Texas Supreme Court resolved what many considered to be an ambiguous tort reform law—in a way that deals a blow to patient safety and, in particular, babies and mothers. Believe it or not, the court based its decision largely on the absence of a comma in the relevant statute.

The case is styled Texas Health Presbyterian Hospital of Denton, Marc Wilson, M.D., and Alliance OB/GYN Specialists, PLLC v. D.A. and M.A., Individually and as Friends of A.A., a minor, Cause No. 17-0256, in the Texas Supreme Court (opinion issued December 21, 2018). You can read the court’s opinion here.

Background on the alleged medical malpractice

The case arose from the birth of a baby at Texas Health Presbyterian Hospital of Denton in 2011. The mom went to the hospital for induction of labor at 39 weeks into the pregnancy. She was admitted to the hospital the night before the elective procedure.

After the Pitocin started, the labor initially looked smooth, but by the time of delivery, the baby was not moving through the birth canal properly.

The obstetrician, Dr. Wilson, used forceps to deliver the baby’s head, but in the process the baby’s shoulder got stuck behind his mother’s pelvis. This is 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.

With this type of delivery, it’s common for babies to experience nerve injuries to the brachial plexus, a bundle of nerves that runs through the armpit area to control the upper extremity on each side.

The baby’s parents filed a lawsuit against the obstetrician, the obstetrical practice group, and the hospital. In the lawsuit, they alleged that Dr. Wilson and the hospital’s labor and delivery nurse were negligent during the labor and delivery, causing their baby’s shoulder to become dislodged.

Negligence or willful and wanton negligence—which standard applies?

The sole issue on appeal in this case was what standard of proof a plaintiff must meet for emergency medical care provided in a hospital obstetrical unit for a patient who is not admitted through the emergency room.

That sounds like a lot of gobbledygook, but there’s a reason that every word is significant.

The Texas tort reform statute, Texas Civil Practice & Remedies Code Section 74.153, raises 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.”

If you read the bolded part of that sentence all the way through, you’ll notice that it’s a mouthful, because it contains no punctuation until the end. Many people considered the Texas Legislature’s poor grammar in the drafting the statute to be an ambiguity, particularly when it came to emergency obstetrical care.

This is exactly the question posed to the Texas Supreme Court.

The baby’s parents 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 obstetrician took the opposite approach, arguing that it didn’t matter whether the patient made it into the obstetrical unit through the emergency room or not. The only issue was whether bona fide emergency care was provided in the obstetrical unit.

In an analysis that would make an English teacher smile with glee, the Texas Supreme Court ruled in favor of the physician.

The court ruled that the tort reform statute is not ambiguous and that the phrase “immediately following the evaluation or treatment of a patient in a hospital emergency department” only modifies “surgical suite.” Thus, the court concluded, for the willful and wanton negligence standard to apply, it doesn’t matter whether emergency care in a hospital obstetrical unit was immediately proceeded by time in the emergency room.

What this means for parents and babies

The Texas Supreme Court’s interpretation of the statute is bad news for babies injured during labor and delivery in a hospital obstetrical unit.

Under this new precedent, it won’t be enough for plaintiffs to prove that an OB/GYN physician or labor and delivery nurse made a mistake or error that caused a baby to develop a permanent brain injury, for example. Instead, the plaintiff must meet the much higher standard of willful and wanton negligence.

The Texas Supreme Court has previously interpreted the willful and wanton negligence standard to be equivalent to gross negligence. This requires the plaintiff to prove both subjective and objective elements of the conduct of each defendant physician or healthcare provider. Subjectively, there must be evidence that the doctor or nurse had actual awareness of information or a finding that posed an extreme degree of risk to the patient. Objectively, there must be evidence that, despite this information, the physician or health care provider proceeded with an extreme degree of indifference to the patient’s safety.

Importance of an experienced medical malpractice attorney

If you have a birth injury, brain injury, or medical malpractice case, it’s important to hire an experienced attorney who understands the tough Texas tort reform law and the numerous appellate court opinions interpreting it, Including this new one.

Most personal injury lawyers don’t handle medical malpractice cases or know what’s necessary to succeed in handling them.

I focus my legal practice on medical malpractice cases, and I’m not afraid to tackle ones where the willful and wanton negligence standard applies.

We are here to help

If you or a loved one has been seriously injured because of poor birth, labor and delivery, medical, hospital, or surgical care, click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.

All consultations are free, and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.


Robert Painter is a 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 against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. Also, in 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.

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.