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Law reduces the circumstances when the burdensome "willful and wanton negligence" standard applies Contact Now

New Texas law restores common sense, will benefit some medical medical malpractice victims

Law reduces the circumstances when the burdensome "willful and wanton negligence" standard applies

Sometimes the Texas legislature writes laws that are unclear. Sometimes the Texas Supreme Court interprets those unclear statutes in a way that’s harsh and doesn’t make good public policy sense. Sometimes the Texas legislature goes back to re-write laws.

That’s basically what happened in the fallout of the Texas Supreme Court’s decision in 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). I’ve written articles about the original opinion and the court’s decision to deny rehearing.

How it all started

The Texas legislature passed a massive package of tort reform laws in 2003. One of the most poorly worded and thought out provisions is codified at Texas Civil Practice & Remedies Code Section 74.153, which defines a heightened standard called willful and wanton negligence that was intended to apply to the provision of bona fide emergency care in a hospital setting.

The big issue in the Presbyterian case was when the willful and wanton negligence standard applies to obstetrical (labor and delivery) care at a hospital.

The answer to that question posed high stakes for victims of medical malpractice in Texas.

In most cases, the standard of proof required for medical malpractice plaintiffs is one of general negligence. This means that a physician or nurse made a mistake that’s inconsistent with the standard of care of what reasonably prudent doctors or nurses would have done under the same or similar circumstances.

A different, much higher standard applies in cases involving hospital emergency room care for bona fide emergencies and, in some circumstances, care in an obstetrical unit. The willful and wanton negligence standard is equivalent to gross negligence, and requires the plaintiff to show that: (1) the healthcare provider had a subjective, actual awareness of something that posed an extreme degree of risk to the patient; and (2) despite the risk, the healthcare provider proceeded with an extreme degree of indifference to the patient’s safety.

The far-reaching effect of the Presbyterian opinion and the partial legislative fix

In the Presbyterian case, the Texas Supreme Court ruled that the willful and wanton negligence standard applies to emergency care in an obstetrical unit, regardless of whether the patient was first seen in a hospital emergency room.

I previously described this decision as bad news for medical malpractice victims because it means that labor and delivery errors by OB/GYN physicians and nurses that violate the standard of care must meet the willful and wanton negligence standard. This means that there will be many instances when families whose babies were born with birth or brain injuries caused by negligence will be deprived of justice in Texas.

After the Presbyterian opinion was entered, experienced Texas medical malpractice attorneys were concerned that there would be a flurry of legal challenges by labor and delivery defendants. The court’s decision left open the possibility that even emergencies caused by the negligence of a doctor or labor and delivery nurse would still be governed by the willful and wanton negligence standard.

That would be a ridiculous result and bad public policy.

I’m pleased to report that, effective September 1, 2019, House Bill 2362 becomes effective. This law amends Texas Civil Practice & Remedies Code Section 74.153 in some important ways:

• The willful and wanton negligence standard doesn’t apply to medical care or treatment provided after the patient is stabilized and receiving medical care or treatment as a nonemergency patient.

• The willful and wanton negligence standard doesn’t apply to a physician or healthcare provider whose negligent act or omission caused a stable patient to require emergency medical care.

If you’ve been seriously injured because of medical malpractice by a Texas physician, nurse, or hospital, then I urge you to contact a top-rated Houston, Texas attorney with significant experience in handling medical malpractice matters. This is an area of the law that’s challenging and constantly evolving, so experience matters.

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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