Yes, some ER medical malpractice cases are still possible under Texas tort reform laws

Many Texans who are victimized by emergency room (ER) medical malpractice have a tough time finding a lawyer to represent them.

We know this because at Painter Law Firm we get calls from potential ER clients every week. Many of them mention how they were turned away by other attorneys who flat out won’t accept ER claims.

We take a different approach.

Bona fide emergency care

The truth is that Texas politicians enacted special tort reform requirements to discourage claims against hospitals and ER doctors and nurses involved in providing bona fide emergency care. Thus, the first question we ask is whether the care that the patient received was emergency or non-emergency care.

For a variety of reasons, people go to hospital ERs for all kinds of reasons that aren’t really emergencies. If the health care involved wasn’t really emergency medical treatment, then there’s a great argument that the tort reform restrictions don’t apply to that situation.

The law treats free-standing ERs and hospital ERs differently

When we talk about tort reform requirements, it’s more specifically Texas Civil Practice & Remedies Code Section 74.153. That law imposes a higher standard of proof for plaintiffs called “willful and wanton negligence.” The statute applies to bona fide emergency care in hospital emergency rooms.

Back in 2003, when the law was written, there weren’t free-standing, independent ERs. Now they’re all over the place in Texas. The ER tort reform law, though, only applies to hospital ERs. At least that’s what the direct language of the statute says and, so far, appellate courts have agreed to limit its applicability accordingly.

What is willful and wanton negligence?

The dreaded willful and wanton negligence standard gives the emergency medicine tort reform law its teeth. The idea behind it is that the law should give hospital ER doctors and nurses a break because they’re having to make split-second life and death decisions. Instead of the normal standard of proof for a Texas medical malpractice case, it requires plaintiffs to prove what the Texas Supreme Court has described willful and wanton negligence standard as akin to gross negligence.

In other words, it’s not enough that a hospital ER doctor or nurse made a mistake in providing bona fide emergency care. To establish willful and wanton negligence, the plaintiff must prove that the health care had:

• Actual, subjective awareness of a sign or symptom that placed the patient in an extreme degree of risk; and

• Objective evidence of proceeding with a conscious disregard to the rights and safety of the patient.

There are some situations where it would be essentially impossible to prove the willful and wanton negligence standard.

For example, let’s say that a neuroradiologist reviewed a CT scan of the brain and completely botched the interpretation, writing a report that said it was a normal scan, missing the fact it showed a brain hemorrhage (bleeding). In that situation, the neuroradiologist would be protected by the willful and wanton negligence standard because there’s no evidence of actual, subjective awareness of any finding that posed a risk of the patient.

In many other situations, though, we’ve found it possible to meet the willful and wanton negligence standard. It usually hinges on nuggets of medical record documentation that show actual, subjective awareness of a sign or symptoms that required evaluation, testing, and follow-up by a doctor or nurse. We use legal nurse consultants as part of our team that carefully reviews the medical records to find this key information.

Avoiding the most common ER malpractice

A recent nationwide study of closed emergency room medical malpractice claims led to three interesting recommendations to ER providers.

First, emergency providers should focus on the history and physical examination. This is the responsibility of the ER doctor or midlevel provider (physician’s assistant/PA or nurse practitioner/NP) who’s managing the visit.

The history refers to interviewing the patient (and sometimes a family member) interview to find out why they’re coming in for care, current and past medical conditions, and current medications.

The history is critical to getting the care started on a right foot. It’s important for doctors and other providers to avoid letting anchoring bias set in and influence their decisions. In other words, they need to approach the patient with an open mind, rather than depending on information passed along to them by an emergency medical technician (EMT) or nurse.

We’ve seen so many cases where inaccurate information or presumptions by someone earlier in a patient’s care end up tainting independent evaluations and leadings to profoundly poor decisions and patient care.

The physical examination is just what it says. It should be a head-to-toe exam by the physician or mid-level providers that gives extra focus on the key areas identified during the patient history. Although we see this frequently in medical malpractice cases, it’s never appropriate for a doctor to do an abbreviated physical exam and rely on what a previous provider noted in the medical records.

Second, ER providers need to focus on diagnostic-decision making. The standard of care requires ER doctors, PAs, and NPs to form a differential diagnosis list of every possible medical condition that could explain the patient’s complaints, history, and physician exam findings. Next, the doctor or provider has to order appropriate diagnostic testing to rule in or out each potential diagnosis on the differential diagnosis list, starting with the most dangerous one.

ER doctors, nurse practitioners, and physician’s assistants often drop the ball hereby settling on the most common or least dangerous condition that’s consistent with a patient’s problems. That’s like playing Russian roulette and needlessly endangers the patient.

Finally, the closed claims study recommends that ER doctors and nurses ensure that patients are continuously evaluated through their stays in the emergency room. A patient’s condition can change at any time, so assessment to establish a baseline and then re-assessments to look for clinical changes are key to providing good, safe patient care.

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

Robert Painter
Article by

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.