Texas Supreme Court Raises Bar on ER Malpractice Cases, Leaving Victims with Limited Options

Since 2003, tort reform measures that became law in Texas have made medical malpractice cases more difficult to pursue. When it comes to hospital emergency room (ER) care, some medical malpractice claims are downright impossible to pursue under existing law.

On January 12, 2024, the Texas Supreme Court entered an opinion to make it even harder for victims of medical malpractice in hospital emergency rooms to seek justice in Texas courtrooms. The case is styled Marsillo v. Dunnick, No. 22-0835. The court’s opinion was written by the Chief Justice, Nathan Hecht, who’s being forced into retirement this year because of his age.

Already, the opinion has faced fierce criticism concerning its statutory construction of the willful and wanton negligence standard of the 2003 tort reform laws.

Is Willful and Wanton Negligence a Fair Standard for ER Malpractice Cases?

What is willful and wanton negligence? Texas Civil Practice & Remedies Code Section 74.153(a) elevates the standard of proof for medical malpractice plaintiffs with a claim involving bona fide medical care in a hospital ER from general negligence to willful and wanton negligence.

In most cases of medical malpractice, it’s sufficient for the plaintiff to prove that a physician, hospital, or healthcare provider was negligent. In other words, the defendant violated the standard of care, or committed an act or omission that a reasonably prudent healthcare provider would not do.

In hospital ER care, though, Section 74.153(a) requires willful and wanton negligence. As an initial matter, the adjectives willful and wanton, by their plain and ordinary meaning, really can’t logically modify the word negligence. Willful connotes intentional conduct, while negligence means something less—the “failure to exercise the standard of care that a reasonably prudent person would exercise in a similar situation.”

Does the Texas Supreme Court Redefine Willful Negligence as Gross Negligence?

The Texas Supreme Court has previously interpreted willful and wanton negligence to be equivalent to gross negligence. Under Texas law, gross negligence requires the plaintiff to have evidence of subjective and objective components.

The subjective element requires evidence of the defendant’s actual awareness of factors that place a patient in an extreme degree of risk. The objective element requires evidence that the defendant proceeded with conscious indifference to the patient’s safety, despite actual, subjective awareness of those factors.

Did Marsillo Case Unravel Justice for a Snakebite Victim in Texas?

In this opinion, though, the Texas Supreme Court held that willful and wanton negligence “is at least, gross negligence, and because the evidence in this case falls short, we leave for another day whether a showing of willful and wanton negligence or more.”

In dicta, the court elaborated that: “Willful and wanton, given their plain, ordinary meaning, suggest, at least, that the actor is not only consciously indifferent to the likelihood that his conduct will cause serious injury but is willing that it do so, even if not quite intending to inflict harm (as distinct from intending to act as he does). That could make willful and wanton negligence a higher standard than gross negligence.”

Is Willful and Wanton Negligence Now a Higher Standard than Gross Negligence?

Unfortunately, in my view, the plaintiff in the Marsillo case served up a terrible set of facts to a Texas Supreme Court that some feel is stacked with tort reform aficionados.

The medical care started when a 13-year-old girl was bitten by a rattlesnake while walking her dog in the front yard. Within an hour, the patient was at Seton Medical Center Hays, with the dead rattlesnake, and was seen by an emergency physician, Dr. Kristy Marsillo, who followed the hospital’s Snakebite Treatment Guidelines.

Applying the willful and wanton negligence standard, the court characterized the main questions as follows:

  • Did Dr. Marsillo’s decision to follow the hospital guidelines—rather than depart from them and administer and type and immediately—objectively pose an extreme degree of risk to the patient?

To answer this question, the plaintiffs produced evidence from a highly credentialed toxinologist physician who specializes in snake envenomation. In short, the expert’s opinion stated that snake envenomation is a time-sensitive emergency where the only cure is antivenom administration, particularly with rattlesnake bites.

The court found the expert’s opinion insufficient because he did not explain why antivenom should always be administered immediately or why the risks of antivenom administration should not be considered, as required by the hospital guidelines. Additionally, the court was critical of the expert’s opinion because it references a unified treatment algorithm without explaining what it is, why it is necessary, or whether it differs from the hospital guidelines.

Finally, the court noted that the expert’s opinion didn’t acknowledge the hospital guidelines or that emergency physician Dr. Marsillo followed them during treatment. The court concluded that this omission meant that the expert did not explain how Dr. Marsillo’s decision to follow the guidelines objectively posed an extreme degree of risk to the patient, instead of avoiding the competing danger of side effects from administering the antivenom immediately.

Are Texas Malpractice Attorneys Turning Away ER Cases Due to High Standards?

To me, the most alarming part of the Marsillo case is that the first paragraph leaves for another day defining the precise contours of willful and wanton negligence. For now, though, we know that the Texas Supreme Court considers it to be “at least gross negligence.”

Some attorneys have long taken the position that willful and wanton negligence is an untenable standard, so they turned away 100% of potential ER cases. To my knowledge, Painter Law Firm is one of the few medical malpractice law firms in Texas that continues to consider hospital emergency room medical malpractice cases.

We have succeeded in handling your cases by being very careful in selecting the cases that we accept. Unfortunately, this often means that despite a terrible injustice or poor care, it’s simply impossible for us to take on a case.

For example, if a radiologist misinterprets a brain CT scan of an ER patient as completely normal, but it actually showed a life-threatening condition that needed immediate care, there’s nothing we can do. The fact that the radiologist felt the scan was normal means it’s impossible for us to prove the subjective awareness component that’s mandatory under the willful and wanton negligence standard.

When we look at potential hospital emergency room claims, we’re looking for documentation of something that shows subjective awareness on the part of the physician or nurse.

This reminds me of a case we handled some years ago where a middle-aged man in the Humble, Texas area went to a hospital ER three days in a row and was repeatedly misdiagnosed and discharged with a migraine headache. For the first two days of his ER encounters, there was nothing in the medical record to show subjective, actual awareness of the condition that posed an extreme degree of risk to the patient.

On the third day, though, we came across three words in the medical record: “right side ptosis.” Ptosis means a droopy eyelid. The significance of this is it’s a sign of a focal neurologic deficit that required further workup. Our experts explained that if the neurologist or ER physician had ordered a brain MRI, they would’ve discovered that he was about to have a stroke, which would have led to proper treatment. Instead, he was discharged again and had a massive stroke a few hours later.

If you’ve been seriously injured because of hospital emergency room care in Texas, contact a top-rated experienced Texas medical malpractice attorney for a free consultation about your potential case. A good law firm will pepper you with questions with the willful and wanton negligence standard in mind and let you know if it’s possible to pursue your claim.

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.