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Texas Supreme Court gives more bad news for birth-injured babies and their families

Willful and wanton negligence standard applies to labor and delivery emergency care

The Texas Supreme Court has narrowed the scope of medical malpractice for babies seriously injured during labor and delivery in perhaps its worst opinion ever.

I wrote about the opinion in December 2018. The case is called Texas Health Presbyterian Hospital of Denton, Marc Wilson, M.D., and Alliance OB/GYN Specialists, PLLC v. D.A. and M.A., Individually and as Friends of A.A., a minor, Cause No. 17-0256, in the Texas Supreme Court (opinion issued December 21, 2018).

Since tort reform targeting medical malpractice cases become effective in 2003, there have been lots of appellate cases trying to clarify and limit the legislature’s often poorly-written law. In recent years, most appellate decisions have trended in favor of plaintiffs. The Texas Health Presbyterian case is a huge and notable exception.

The question in the case was whether the willful and wanton negligence standard applied to emergency care provided in a hospital obstetrical (labor and delivery) suite, when the mother wasn’t first treated in an emergency room (ER). Willful and wanton negligence is a lot tougher to prove than the general negligence standard that applies to most medical malpractice cases.

In a general negligence case, the plaintiff has to show that it’s more likely than not that the defendant’s mistake or substandard care caused injury. When the willful and wanton negligence standard applies, the plaintiff must show that the defendant had actual, subjective awareness of an extreme degree of risk to the patient, but consciously disregarded the risk and proceeded in a manner of care that was dangerous to the patient.

The Texas Supreme Court issued an opinion finding that the emergency medical care willful and wanton negligence standard applies to all emergency care provided in a hospital obstetrical suit, whether the mother was first cared for in the hospital ER or not.

The trial court plaintiff filed a motion for rehearing with the court on February 6, 2019. The motion urged the court to clarify its opinion because it could be read in a way that wipes out the statutory exceptions to the willful and wanton negligence law, found at Texas Civil Practice & Remedies Code Section 74.153. The court denied the motion for rehearing.

While I’m disappointed at the direction the Texas Supreme Court has taken, I expect it will continue to take a textual approach to the inevitable further appeals that the justices have essentially invited.

As the motion for rehearing addressed, many future frivolous appeals by defendant hospitals and OB/GYN physicians will probably focus on narrowing the statutory exceptions to the willful and wanton negligence standard under Section 74.153, including care:

(1) that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient;

(2) that is unrelated to the original medical emergency; and

(3) that is related to an emergency caused in whole or in part by the negligence of the defendant.

While I think the likley defense appeals will add to the frustration, time, and expense of litigation for plaintiffs, I don’t expect they’ll be successful. In Texas Health Presbyterian, the court applied the rules of statutory construction to reach its decision on what the statute means.

The legislature did a terrible job in drafting the tort reform statute overall, creating ambiguities for courts to interpret. On the other hand, I think the statutory exceptions to the willful and wanton negligence standard are crystal clear and don’t think the Texas Supreme Court will disturb them.

The big take-home message for folks harmed by medical malpractice—and for attorneys referring out such cases—is to find an experienced Texas medical malpractice attorney who knows how to navigate the Texas tort reform minefield.

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If you or a loved one has been seriously injured because of poor medical or hospital care, click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.

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Robert Painter is a 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 against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. Also, in 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.

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. Contact him by calling 281-580-8800 or emailing him right now.


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