What it takes for a patient to win a medical malpractice case about hospital ER care

Here at Painter Law Firm, we receive a lot of calls from patients who need help because of poor care that they received in a hospital emergency room.

Botched stroke diagnosis in a hospital ER

Yesterday, for example, a mother called about her 17-year-old daughter, who was misdiagnosed at a northwest Houston area emergency room.

The mom, who is a registered nurse, was at home when she saw her daughter acting disoriented, with difficulty walking and projectile vomiting. She felt that it might be a stroke and called 911 for help. She said that the ambulance emergency medical technicians (EMTs) “took their time” in getting to the hospital and gave her daughter anti-nausea medication that masked the stroke symptoms.

Once they got to the hospital emergency room, the doctor ordered a head CT scan, which came back negative. The emergency physician jumped to the conclusion that the young woman was suffering from a migraine and discharged her.

Two days later, the mom took her to a neurologist, who ordered an MRI. The mom had been right all along—it was a stroke. The MRI showed evidence of a brain mass and stroke.

The tough legal standard for hospital ER cases

A lot of dreadful news for patients came out of the 2003 round of tort reform in Texas. One of the worst new laws, though, put tough new standards in place for hospital emergency room malpractice cases.

I think the easiest way to show the difference is by first discussing the legal standard for a normal medical malpractice case. In any case where there was a medical error or negligence outside a hospital emergency room, the plaintiff must prove the case by a standard called preponderance of evidence, which means “more likely than not.”

In hospital emergency room cases where emergency care is at issue, Texas Civil Practice & Remedies Code Section 74.153 sets a standard called wilful and wanton negligence. Lawyers and scholars agree that this term is legal gobbledygook—it seems to require intentional conduct, but the term “negligence” by itself merely requires a mistake. The Texas Supreme Court stepped in and interpreted “wilful and wanton negligence” to be equivalent to gross negligence.

Texas appellate courts have interpreted the standard to require that plaintiffs prove that hospital emergency physicians and healthcare providers acted in a way that meets both a subjective standard and an objective standard.

To satisfy the subjective standard requirement, the plaintiff must produce evidence of the defendant’s state of mind, probing into whether the defendant knew about a danger or risk caused by his or her conduct.

The objective requirement requires proof that the defendant essentially ignored the risk and acted in a way that demonstrated a conscious disregard for the patient safety.

How do you prove wilful and wanton negligence?

The standard of proof for Texas hospital emergency room cases is tough. In some situations, it’s next to impossible to prove. In other cases, a competent, experienced Texas medical malpractice attorney can find sufficient evidence in the medical records or through testimony to get over the legal hump.

Sometimes, just a few words in the medical records make the difference.

For example, I recently concluded a case that’s pretty similar to the one I discussed at the beginning of this article. My client was discharged from the emergency room with the incorrect diagnosis of migraine headaches, after a head CT scan was read as not showing any signs consistent with a stroke.

By the way, I want to quickly address this head CT scan issue because it comes up so commonly. Stroke experts will tell you that a negative or normal head CT scan does not rule out a stroke. Instead, emergency physicians and neurologists order a head CT scan to rule out other possible head or brain conditions that are causing the patient’s symptoms.

Within a few hours of returning home after being discharged from the hospital emergency room, my client had a massive stroke that left him permanently disabled.

As I reviewed his medical records with medical and stroke experts, it turns out that three words written in the medical record by a neurologist meant that we had a case. Without those three words, we couldn’t show that the emergency providers had subjective awareness of a dangerous condition.

The three words were “mild right ptosis.” Ptosis is a medical term that means a droopy eyelid. As it turns out, a droopy eyelid may be focal neurological deficit. Because the medical records reflect that my client had that condition, we could show that the hospital emergency room providers had subjective awareness of a potentially dangerous condition that needed to be worked up. We can also show that they objectively acted with disregard to the patient’s safety by discharging him instead of doing testing to determine the cause of his ptosis and neurological abnormality.

Some potential cases that probably wouldn’t meet the Texas hospital ER standard

Some legal scholars write about how good laws create incentives for appropriate conduct. In my view, Texas law does the opposite. Under the Texas hospital emergency room legal standard, emergency providers could defeat almost any medical malpractice case by documenting nothing—or close to it—in the medical records.

In my experience, cases where the hospital emergency room records have very limited documentation are extremely hard to pursue. For example, patients or family members frequently call us explaining how they told an ER physician or nurse about several problems or abnormalities, but the medical records reflect that everything was fine.

Texas law also requires medical malpractice plaintiffs to have a physician medical expert on board to back up the allegations in the case. When the medical records are silent about information that the patient or family told a healthcare provider, it’s impossible for the medical expert to say with certainty what occurred.

Another type of hospital ER case that can be virtually impossible to prove involves misinterpretation of diagnostic radiology scans by radiologist or neuroradiologist. Quite often, radiology physicians are located off-site and have limited information about an ER patient’s clinical status. If a radiologist reviews an MRI, CT, angiogram, or other study and interprets it, by mistake, as completely normal, then it’s inconceivable how a plaintiff could meet the subjective awareness requirement.

In other words, if a neuroradiologist misreads a hospital emergency room MRI as normal, when actually it showed a stroke, there’s no way to hold him or her accountable. It’s really shocking how bad this law is for patients!

We are here to help

The experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas understand emergency room law and how to look for the evidence necessary to prove a medical malpractice case.

If you or a loved one has been seriously injured because of poor hospital emergency room 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.