The Austin Court of Appeals tackled an interesting legal issue on the effect of hospital policies on physician care. The case arose from alleged hospital emergency room (ER) medical malpractice involving treating a rattlesnake bite on a teenage girl.
The case is styled Dunnick v. Kristy Marsillo, DO; No. 03-21-00296-CV, Austin Court of Appeals, and you can read the opinion here.
The terrible events began when a rattlesnake bit teenager Raynee’s left foot. Emergency medical service (EMS) got her to Seton Medical Center Hays in less than an hour after the snake bite. Someone brought the dead rattlesnake to the ER, so there was no doubt about what type of snake bit Raynee.
In the medical malpractice lawsuit, the plaintiffs were critical of the emergency physician for not timely administering anti-venom. According to the medical records:
• 8:20 pm: Rattlesnake bite
• 9:14 pm: Arrival at the hospital ER
• 11:50 pm: The ER physician orders anti-venom
• 12:29 a.m.: Anti-venom infusion started
The plaintiffs’ medical toxicology expert explained that anti-venom is the definitive treatment for a rattlesnake bite. He explained that it’s a time-sensitive emergency and anti-venom is the only way to stop the progression of the toxic snake bite, including death, permanent pain, disability, and disfigurement.
The expert contended that as soon as Raynee showed signs of envenomation, such as abnormal vital signs, swelling, bruising, pain, or tenderness, the ER doctor should have ordered anti-venom.
Because the emergency care and what took place in the hospital ER, it subject to the Texas tort reform legal standards of willful and wanton negligence. Appellate courts have interpreted that to be equivalent to gross negligence, requiring a showing that the defendant had actual knowledge of a situation that placed the patient at an extreme degree of risk, but nevertheless proceeded with conscious indifference to the patient’s well-being.
The defendant emergency physician, Dr. Marsillo, filed a motion for summary judgment, arguing that the plaintiffs could not meet the willful and wanton negligence standard. The trial court granted the motion for summary judgment, but the Austin Court of Appeals reversed and remanded the case, on the ground that the plaintiffs’ expert evidence created a fact question for the jury to determine.
On November 16, 2022, Dr. Marsillo filed a petition for review with the Texas Supreme Court, which has not decided whether to accept the case.
Hospital policies
At the trial court level, Dr. Marsillo argued that she was following the hospital’s standing snakebite treatment guidelines for anti-venom administration and, thus, her care didn’t constitute willful and wanton negligence.
The appellate court’s analysis is important and worth quoting: “To the extent Dr. Marsillo suggests that adherence to a hospital treatment protocols or guidelines necessarily negates a physician’s subjective awareness of risk in every case, we disagree. A hospital is an institution licensed to provide health care, but only a licensed doctor can provide medical care.” (citations omitted).
This is an interesting application of the common law corporate practice of medicine doctrine. It’s typically applied to prevent the hospital from being responsible for physician medical decisions, including diagnosis and orders. Despite hospitals advertising their excellent physicians, this doctrine generally prohibits hospitals from employing physicians; therefore, hospitals aren’t legally responsible for physician negligence.
This case illustrates that hospital policies or guidelines aren’t a “get out of jail free” card for doctors. Licensed physicians have an independent duty to their patients, regardless of what the hospital policy, guideline, or rule says.
If you’ve been seriously injured because of poor hospital, emergency room, or medical care in Texas, then contact a top-rated, experienced Texas medical malpractice attorney for a free strategy session about your potential case.
