Texas Appellate Court Discusses “Wilful And Wanton Negligence” Requirement In Emergency Care Medical Malpractice Cases

The Court of Appeals Second District of Texas Fort Worth (“Texas Appellate Court”) held in its Memorandum Opinion delivered on March 8, 2018 that the trial court erred by granting summary judgment on the Texas medical malpractice defendants’ no-evidence motion for summary judgment where the plaintiff had provided more than a scintilla of evidence that would enable reasonable and fair-minded jurors to differ in their conclusions as to whether the defendant physician’s deviations from the standard of care were done with willful and wanton negligence.

Tex. Civ. Prac. & Rem. Code Ann. § 74.153

Tex. Civ. Prac. & Rem. Code Ann. § 74.153 provides: “In a suit involving a health care liability claim against a physician or health care provider for injury to or death of a patient arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the claimant bringing the suit may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with wilful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.” (emphasis added)

Thus, in a a health care liability claim arising from the provision of emergency medical care, the claimant must show by a preponderance of the evidence that the health-care provider deviated from the applicable standard of care with willful and wanton negligence.

“Wilful And Wanton Negligence” Standard

The Texas Appellate Court stated that the Texas Legislature intended “wilful and wanton negligence” as used in section 74.153 of the civil practice and remedies code to mean “gross negligence.”

Gross Negligence

The Texas Appellate Court stated that gross negligence has both an objective and a subjective component. In examining proof of the subjective component, courts focus on the defendant’s state of mind, examining whether the defendant knew about the peril caused by his conduct and continued to act in a way that demonstrated he did not care about the consequences to others. It is the defendant’s state of mind – whether the defendant knew about a peril but nevertheless acted in a way that demonstrated that he did not care about the consequences – that separates ordinary negligence from gross negligence.

But gross negligence does not require proof that the defendant intended or tried to harm the plaintiff. Moreover, evidence of “some care” will not disprove gross negligence as a matter of law. Thus, the court looks for evidence of the defendant’s subjective mental state rather than the defendant’s exercise of care, and a plaintiff may establish the defendant’s mental state by circumstantial evidence.

In the present case, viewed in the light most favorable to the plaintiff, the summary judgment evidence establishes that: on March 12, 2014, the plaintiff went to Elite Care for emergency medical care because he was experiencing symptoms of right-side abdominal and flank pain; the defendant physician used the emergency-physician-evaluation form for assessing abdominal-pain complaints in his evaluation of the plaintiff; the defendant physician failed to perform a genital exam on the plaintiff, failed to note or rule out any testicular swelling or tenderness of the plaintiff, and failed to order an ultrasound; and, the emergency-physician-evaluation form listed “testicular torsion” as one of the possible diagnoses for causing abdominal pain.

The Texas Appellate Court stated that the defendant physician’s conduct on March 12, 2014 constituted not only a breach of the standard of care, but willful and wanton negligence in deviating from that standard, as opined by the plaintiff’s expert’s summary judgment affidavit.

The Texas Appellate Court held: “Examining the entire record, crediting evidence favorable to Martinez-Gonzalez [the plaintiff] if a reasonable juror could, drawing every inference in his favor from that evidence that a reasonable juror could, and resolving any doubts against Appellees unless reasonable jurors could not, more than a scintilla of summary judgment evidence exists that would enable reasonable and fair-minded jurors to differ in their conclusions as to whether Dr. Castro [the defendant physician] subjectively acted with willful and wanton negligence on March 12, 2014, in his decisions to not perform a genital exam or an ultrasound on Martinez-Gonzalez to rule out testicular torsion despite the fact that Martinez-Gonzalez suffered from—according to Dr. Gibson [the plaintiff’s expert]—classic testicular-torsion symptoms and despite the fact that Elite Care’s assessment form for use on patients experiencing abdominal pain, which Dr. Castro used, had blanks to note the performance of a genital exam, to note any testicular swelling or tenderness, and to order an ultrasound and listed testicular torsion as a possible diagnosis applicable to a male experiencing abdominal and flank pain severe enough to seek emergency medical care. That is, reasonable jurors could differ in their conclusions as to whether Dr. Castro possessed actual, subjective awareness of the extreme risk that Martinez-Gonzalez suffered from the time-sensitive condition of testicular torsion and yet consciously disregarded that risk and its consequences by not conducting an applicable genital exam or ultrasound.”

“Further, the summary-judgment evidence that a reasonable juror could credit favorably to Martinez-Gonzalez establishes that on March 13, 2014, Martinez-Gonzalez returned to Elite Care complaining of excruciating right testicular pain and asked for Dr. Castro. Dr. Castro spoke to Martinez-Gonzalez in the waiting area instead of admitting him for a follow-up examination. Although Dr. Castro claims that Martinez-Gonzalez only wanted pain medication and refused to check into Elite Care, Martinez-Gonzalez claims that he did not ask only for pain medication and did not decline to check in, but instead that Dr. Castro “rushed me out” of Elite Care, said he could do nothing further for Martinez-Gonzalez, and told him to go to Parkland Hospital. Martinez-Gonzalez contends that because he did drive himself to Parkland and did attain admission there, his actual conduct was inconsistent with Dr. Castro’s contention that Martinez-Gonzalez wanted only pain medication and refused to be admitted to Elite Care. Martinez-Gonzalez testified via his summary-judgment affidavit that he spoke with Dr. Castro after his surgery at Parkland to remove his right torsed testicle and that Dr. Castro stated he did not believe that the loss of Martinez-Gonzalez’s testicle was a “big deal” because at Martinez-Gonzalez’s age, he would not be having any more children.”

The Texas Appellate Court held: “Again, examining the entire record, crediting evidence favorable to Martinez-Gonzalez if a reasonable juror could, drawing every inference in his favor from that evidence that a reasonable juror could, and resolving any doubts against Appellees unless reasonable jurors could not, more than a scintilla of summary-judgment evidence exists that would enable reasonable and fair-minded jurors to differ in their conclusions as to whether Dr. Castro acted with willful and wanton negligence on March 13, 2014—in his decisions to not admit Martinez-Gonzalez for screening, examination, treatment, and transfer, despite Martinez-Gonzalez’s time-sensitive emergency medical condition of a torsed right testicle. Thus, more than a scintilla of evidence exists that that would enable reasonable and fair-minded jurors to differ in their conclusions as to whether Dr. Castro’s deviations from the standard of care on March 13, 2014, were done with willful and wanton negligence.”

Source Martinez-Gonzalez v. EC Lewisville, LLC, D/B/A Elite Care Emergency Center, No. 02-17-00122-CV.

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This entry was posted on Thursday, March 29th, 2018 at 5:17 am. Both comments and pings are currently closed.

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