A Twitter connection recently sent me an interesting observation and question, “Amazing that you are advertising for ER cases in Texas with the ‘willful and wanton’ standard of proof = gross negligence for ER cases. Please share your secrets of getting these cases successfully resolved. Most Texas attorneys don’t take ER cases.”
That’s tough to address this fully within the Twitter character limit, so let’s tackle it here.
In my experience, he’s correct that most Texas attorneys won’t take emergency room (ER) cases. At Painter Law Firm, we hear from lots of potential clients who tell us they’ve been turned down by other lawyers.
In 2003, Texas enacted tort reform measures that apply to health care liability and medical malpractice claims. The legislative intent behind this law was to decrease the number of medical malpractice lawsuits by making them more difficult to pursue.
While the tort reform law broadly impacts all Texas medical malpractice cases, there are additional special rules that apply to cases involving hospital emergency medical care. This particular statute is codified at Texas Civil Practice & Remedies Code Section 74.153.
Willful and wanton negligence standard
Section 74.153 imposes a “willful and wanton negligence” standard for medical malpractice claims involving the provision of emergency medical care in a hospital emergency department. The Texas Supreme Court has interpreted this standard to be equivalent to gross negligence.
This requires a plaintiff to have proof of two components: (1) subjective awareness; and (2) objective awareness. Thus, a plaintiff must prove that: (1) when viewed objectively from the defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to the patient and (2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of the patient.
This standard is the reason why many Texas attorneys to decline to accept emergency room cases.
Secrets to resolving ER case claims in Texas
Painter Law Firm hasn’t been shy about handling hospital emergency room cases. In fact, just this week we settled an ER case for over $1 million.
This doesn’t mean that it’s possible to pursue every ER case under Texas, law, though. In fact, many cases simply can’t be pursued.
For example, let’s say a patient presents to a hospital ER with stroke symptoms and the ER physician orders a CT scan of the head and brain. Let’s say the radiologist misreads the CT scan as completely normal, but it actually shows a stroke. Because of the ER standard requiring subjective awareness, the radiologist can’t be held liable for her mistake of misreading the CT scan as completely normal.
When we review a case involving hospital ER care, the first thing we look for is evidence of subjective awareness. In other words, what actual knowledge and awareness did the ER physician, nurse, radiologist have? Here are the sources of evidence we frequently consider:
• Hospital ER medical records
• Hospital ER radiology images
• Photos and videos from the ER
• Audio recordings from the ER
• Text messages transmitted during the ER encounter
We begin our investigation of a case by making a minute-by-minute chronological chart of the ER encounter that focuses on the subjective awareness of the ER physicians and providers. Next, we consider whether that subjective awareness or knowledge should’ve triggered some action by an ER physician or nurse, and whether the failure to take such action placed the patient in an extreme degree of risk—that’s where the second essential element of objective conscious indifference comes into play.
In many cases, the determining factor of whether a case is viable can come down to a few words in the medical records.
For example, we represented a client who suffered a brain injury from an undiagnosed, untreated ischemic stroke. Let’s call him Bryan. Bryan went to a hospital ER in the Houston area with a severe headache.
Bryan’s wife described other symptoms that were present in the ER, including motor weakness on his right side and facial droop on the same side. Unfortunately, no one documented those additional symptoms in Bryan’s medical record.
The ER physician consulted a neurologist, who evaluated Bryan in the ER. In the neurologist’s note in the medical record, he documented “right side ptosis.” Ptosis is a droopy eyelid. It’s also a focal neurologic deficit. The three words “right side ptosis” provided enough evidence for us to establish that the defendants had actual subjective awareness of Bryan’s focal neurologic deficit, which required further workup rather than discharging him home.
We pursued a medical malpractice case on Bryan’s behalf, despite the ER willful and wanton negligence standard applying to his case. The defendants ultimately settled the claim before trial for over $1 million.
Getting legal help in a Texas ER case
There are some cases that are simply impossible to pursue under Texas tort reform laws. There are others that can be successfully litigated or resolved. The key is getting an experienced medical malpractice attorney who’s willing to review the potential case.
