Does the Texas willful and wanton standard for ER medical malpractice cases apply to both hospitals and urgent care or freestanding emergency rooms?


Painter Law Firm's frequently asked question (FAQ) series

December 12, 2018

In most Texas medical malpractice cases, a plaintiff (patient) only needs to prove negligence. When bona fide emergency medical care is the subject of the medical malpractice, though, there are some additional considerations.

Depending on the circumstances, Texas law may require a higher standard of proof called “willful and wanton negligence.” The Texas Supreme Court has interpreted willful and wanton negligence as being equivalent to gross negligence. Regardless of what you call it, it’s a tough standard that requires careful investigation and workup by an experienced Texas medical malpractice attorney.

When the last round of tort reform passed in 2003, Texas didn’t have freestanding emergency rooms. As a result, the statutory language defining the “willful and wanton standard” only applies to emergency medical care provided in a “hospital.”

I’ve successfully argued in different courts in Texas that the willful and wanton standard doesn’t apply to freestanding emergency rooms, meaning those that aren’t part of a hospital.

As an experienced medical malpractice lawyer, here are the things that I investigate when evaluating an emergency room case:

· Was the care at issue provided at an urgent care? If so, then then the negligence standard applies.

· Was there actually an emergency? Was it bona fide emergency medical care? If not, then the plaintiff will only be held to a negligence standard.

· Was bona fide emergency medical care provided in a hospital ER? If so, then the willful and wanton standard applies.

· Was bona fide emergency medical care provided in a freestanding ER? If so, then there’s a strong argument that the negligence standard applies.

In response to getting sued for medical malpractice, many freestanding ERs have gotten creative and have argued that they’re a part of a small hospital and, thus, benefit from the willful and wanton standard. 

Generally, I find that to be a tough argument for independent ERs because of all the requirements to fall within the definition of a general “hospital” in Texas Health & Safety Code Chapter 241, including: 

(1) provide services, facilities, and beds for use for more than 24 hours;

(2) for two or more unrelated individuals;

(3) requiring diagnosis, treatment, or care for illness, injury, deformity, abnormality, or pregnancy; and

(4) regularly maintain, at a minimum, clinical laboratory services, diagnostic X-ray services, treatment facilities including surgery or obstetrical care or both, and other definitive medical or surgical treatment of similar extent. 

You can use the searchable online database of the Texas Department of Health Services to check a facility's licensure.

To sum it up, emergency medicine cases are tough, but not always impossible, under Texas law. An experienced Texas medical malpractice lawyer can help guide you in the right direction.

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Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, 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.

Robert Painter

Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.


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