In Texas, patients can sue hospital emergency departments for negligence which results in severe injury or death.
The standard of proof required is high. The patient must prove by a “preponderance of the evidence” that the emergency room physician or emergency room personnel “with willful and wanton negligence” deviated from the degree of care and skill that is reasonably expected of any ordinarily prudent physician or healthcare provider in the same or similar circumstances. CPRC Chapter 74.153.
Willful and Wanton Negligence
“Willful and Wanton Negligence” means more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to establish that the act or omission complained of was the result of actual conscious indifference to the rights, safety or welfare of the persons affected by it.
The Texas Legislature enacted this very strict standard in 2003 along with other very harsh and restrictive “tort reform” legislation. As a result, persons providing healthcare in an emergency setting have a high degree of protection from patient lawsuits. However, the cases are not impossible.
When the Court is presented with a hospital emergency department case, the Court is required to instruct the jury to consider, along with other relevant matters, the following:
- Whether the person providing care did or did not have the patient’s medical history or was able or unable to obtain a full medical history. This is important because in a true emergency where life saving measures are being undertaken, healthcare providers may not have time to obtain a full medical history. In many cases which occur in the emergency room, this is not the case.
- Whether there was already an existing relationship with the patient. This is important because in a true life-saving emergency situation a health care provider may not be familiar with all of the patient’s medical history, medications, allergies, etc.
- the circumstances constituting the emergency.
A Few Notable Exceptions
One notable exception to the protection of emergency room healthcare providers is for healthcare that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient.
As well, if the emergency itself was caused by the person providing the treatment, that person cannot claim the protection of the emergency medical care statute.
Finally, if the negligence which occurred is unrelated to the original medical emergency, then the onerous emergency room negligence laws may not apply.
What types of cases are still viable?
So, you may ask, given how strenuous the legal requirements are to bring emergency room negligence cases, what types of cases are still viable?
Although not an exhaustive list, we are either investigating, have handled or are currently pursuing the following types of cases:
- Failure to diagnose and treat heart attack resulting in death
- Improper insertion of IV resulting in permanent nerve damage
- Failure to diagnose arterial embolism resulting in patient requiring an above the knee amputation
- Patient “dumping”, meaning failing or refusing to treat a patient who does not have health insurance. (Note: This only applies to true emergencies where medical care is necessary to stabilize a critically ill patient and the failure to provide medical care results in death of the patient.)
- Dropping patients or allowing them to fall
- Failure to diagnose certain life threatening conditions where the patient is mid-diagnosed and discharged from the ER and subsequently dies as a result.
Need a Free Evaluation of Your Case?
The team at Van Wey, Metzler & Williams, PLLC is comprised of experienced medical malpractice attorneys who are committed to helping people who have been seriously or fatally injured by the negligence of healthcare providers.
For a free evaluation of your case, call us at 855-403-3207 or CONTACT US and complete our quick case submission form.
By: Kay Van Wey | January 9th, 2017