Willful and wanton negligence standard applies to some Texas labor and delivery medical malpractice cases

As the long-awaited year of 2021 has arrived, I’ve looked back on some of the more interesting medical malpractice opinions from Texas appellate courts.

One such case is the Texas Supreme Court’s opinion in Glenn v. Leal, which addresses important issues concerning emergency and obstetrical medical malpractice cases. You can read the court’s opinion here.

Much attention has been focused on the heightened “willful and wanton negligence” standard of proof applicable to hospital emergency room (ER) cases. What’s lesser known is that the same provision, Texas Civil Practice & Remedies Code Section 74.153 also applies to some cases where emergency medical care is rendered to a patient in a hospital’s obstetrical unit.

Perhaps because the complexity of how this tort reform statute works, many Texas attorneys have zoned out when it comes to considering medical malpractice cases involving ER care. Other lawyers who don’t regularly handle medical malpractice cases under Texas law get caught in a trap for the unwary in the emergency obstetrical cases.

Here’s a quick primer on how law works.

In normal medical negligence cases, the plaintiff or patient must prove that a doctor, hospital, or healthcare provider deviated from the standard of care. The standard of care is what a similar doctor, hospital, or healthcare provider would have done at the same or similar circumstances. The standard of proof is a preponderance of the evidence, which means more likely than not.

Under the willful and wanton negligence standard, the plaintiff must provide legally sufficient evidence of subjective and objective components. Subjectively, the defendant must have had actual knowledge of the condition that posed an extreme degree of risk to the patient. Objectively, the defendant must have proceeded with conscious behavior that demonstrates conscious indifference to the safety of the patient.

This all sounds quite daunting. In some cases, it’s essentially impossible to meet the willful and wanton negligence standard. In many other cases, though, an experienced medical malpractice lawyer can succeed in meeting the burden of proof.

Under Texas law, it’s up to the health care defendant to plead the willful and wanton negligence standard as an affirmative defense. An affirmative defense is basically a legal maneuver that says “so what.” In other words, when defendants plead an affirmative defense, they’re saying that they aren’t liable even if everything that the plaintiffs that is true. The burden of proof to prove an affirmative defenses is on the defendant.

This is where the Texas Supreme Court’s important analysis in Glenn v. Leal comes into play. It deals with the question of who decides whether the willful and wanton negligence standard applies, rather than the general negligence standard applicable in most medical malpractice cases, when there is conflicting proof on both sides.

Glenn v. Leal is an obstetrical case where the pregnant mom received regular prenatal care from her obstetrician (OB/GYN). Because she was diabetic, the OB/GYN recommended induction of labor to minimize potential complications during labor and delivery.

During delivery, the obstetrician encountered to potentially life-threatening conditions. First, there was shoulder dystocia, a medical condition where the baby shoulder was lodged against the pubic bone. Additionally, the umbilical cord was wrapped around the baby’s neck. The obstetrician managed the situation and delivered the baby, which was born with a permanent brachial plexus injury. The brachial plexus is a large collection of nerves that runs through the armpit area on both sides.

In the medical malpractice lawsuit, which was tried to a jury, the obstetrician defendant pursued the affirmative defense of the willful and wanton negligence standard. The jury returned a verdict of $2.7 million in favor of the plaintiff, finding that the obstetrician was negligent, but not willfully and wantonly negligent.

After the jury verdict was received, the obstetrician move for directed verdict and motion for judgment notwithstanding the verdict (JNOV), based on the jury’s failure to find willful and wanton negligence. The court denied the post-verdict motions.

On appeal, the defendant argued that the trial court should have construed the Section 74.151 willful and wanton negligence standard to emergency situations in hospital obstetrical units, and should have submitted the emergency medical care issue to the jury for determination.

The Texas Supreme Court held that:

• For the willful and wanton negligence standard to be triggered, a patient doesn’t have to be treated in an ER before receiving emergency care in an obstetrical unit.

• The case was reversed and remanded for a new trial because the parties disagreed on whether the obstetrician provided emergency medical care in delivering the baby, meaning that the questions should have been submitted to the jury for determination.

If you’ve been seriously injured because of poor medical care in Texas, then contact a top-rated experienced Houston, Texas medical malpractice lawyer for help in evaluating your potential case.

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.