Texas law treats medical malpractice lawsuits differently from other types of negligence cases. One of the significant differences is a heightened standard of proof in some types of claims.
Texas Civil Practice & Remedies Code Section 74.153 mandates a standard of proof called “willful and wanton negligence” for certain emergency medical care cases. If you’re confused by what that means, join the club. Willful conduct is inconsistent with any theory of negligence, but that discussion is for another day.
What is willful and wanton negligence?
I think pretty much everyone who’s read the statute has been confused about what it means. The Texas Supreme Court interpreted it to be equivalent to gross negligence.
Gross negligence and, therefore, willful and wanton negligence, requires proof of subjective and objective elements. The subjective prong of willful and wanton requires proof that the physician or health care provider had actual, subjective knowledge of signs, symptoms, or other factors that poses an extreme degree of risk to the patient. The objective prong, in turn, requires proof that despite this actual knowledge, the doctor or health care provider proceeded in a manner that posed an extreme degree of risk to the patient.
When does this high standard apply?
Many people, including attorneys who don’t regularly practice medical malpractice in Texas, believe that the willful and wanton standard applies to all emergency room (ER) cases. Fortunately, that’s simply untrue.
Before contrasting situations in which this more difficult standard applies to those where it doesn’t, we should consider the statutory definition of emergency medical care.
Section 74.001(7) defines “emergency medical care” as bona fide emergency services provided after the sudden onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment of bodily functions, or serious dysfunction of any bodily organ or part.
To put it in plain English, emergency medical care means that the patient is being treated for a sudden onset of a severely disabling or life-threatening injury.
When willful and wanton negligence standard applies
Section 74.153 of the tort reform statute defines the circumstances in which the willful and wanton standard of proof applies:
The claim involves injury or death of a patient arising from emergency medical care in a hospital emergency department. (Does the Texas willful and wanton standard for ER medical malpractice cases apply to both hospitals and urgent care or freestanding emergency rooms?)[https://painterfirm.com/medmal/does-the-texas-willful-and-wanton-standard-for-er-medical-malpractice-cases-apply-to-both-hospitals-and-urgent-care-or-freestanding-emergency-rooms/]
The claim involves injury or death of a patient arising from emergency medical care in an obstetrical unit. (Willful and wanton negligence standard applies to some Texas labor and delivery medical malpractice cases)[https://painterfirm.com/medmal/willful-and-wanton-negligence-standard-applies-to-some-texas-labor-and-delivery-medical-malpractice-cases/].
The claim involves injury or death of a patient arising from emergency medical care in a surgical suite immediately following the evaluation or treatment of a patient in the hospital emergency department.
In my experience, the most common problem for ER medical malpractice plaintiffs is that the medical record documentation is silent or doesn’t have enough information to establish the subjective awareness prong. (How to pursue a Texas medical malpractice case when medical records are silent or missing)[https://painterfirm.com/medmal/how-to-pursue-a-texas-medical-malpractice-case-when-medical-records-are-silent-or-missing/].
If a physician simply misses the diagnostic mark, for example, and discharges a patient with no diagnosis or documentation of anything abnormal, it’s impossible to show subjective actual awareness.
On the other hand, if a physician botches the diagnosis, but documents another finding—although incorrect—that required urgent follow-up, then it’s sometimes possible to salvage the case.
That was the situation in a medical malpractice lawsuit that I handled against a radiologist who misread a CT scan. The patient had profound clinical symptoms of a stroke. The radiologist misread the brain CT scan as normal in that regard but noted other abnormal (and inaccurate) findings in her report. Our radiology expert testified that the radiologist’s inaccurate findings gave her actual subjective knowledge of the condition that posed an extreme degree of risk to the patient. We were able to proceed with the case.
When willful and wanton negligence standard doesn’t apply
The statute expressly provides that the willful and one negligence standard does not apply to:
- Medical care or treatment that’s provided after the patient is stabilized and receiving medical care or treatment as a nonemergency patient.
Determining whether the heightened ER standard applies to particular case requires a careful, thorough review the medical records. The question must be asked and answered for the specific care at issue in the case. In other words, there’s really not a global answer.
- Medical care treatment that is unrelated to a medical emergency.
As a former hospital administrator, I know that many uninsured and other patients use hospital ERs for primary or routine care. In those instances, the willful and wanton negligence standard doesn’t apply because there is not actually a bona fide emergency that’s being treated.
- When a physician or health care provider whose negligent act or omission proximately caused a stable patient to require emergency medical care.
This last bullet point was added in 2019, to resolve potential unjust outcomes under the original wording of the statute. If, for example, an obstetrician or labor and delivery nurse are negligent in treating a stable patient, leading to fetal hypoxia (low oxygen levels) and requiring an emergency C-section delivery, the heightened standard would not apply.
Finally, appellate courts have determined that the willful and wanton negligence standard doesn’t apply to emergency medical care in a freestanding emergency room. The clear language of the statute limits its application to hospital emergency rooms.
If you’ve been seriously injured because of poor hospital or emergency care in Texas, it’s important to contact a Houston, Texas medical malpractice lawyer with extensive experience in this complex area of law.
