TMA Argues to Keep Higher Negligence Standard in Emergency Care
By Joey Berlin


State law says proving a negligence case over emergency medical care in an obstetrical unit requires a higher-than-normal standard of proof, the Texas Medical Association has told the Texas Supreme Court in a friend-of-the-court brief.

TMA signed onto the brief this month with the Texas Alliance for Patient Access (TAPA), the Texas Hospital Association, and several other organizations to support Denton obstetrician-gynecologist Marc A. Wilson, MD, who’s facing a negligence lawsuit over a 2011 child delivery.

During the delivery, Dr. Wilson encountered shoulder dystocia, in which the baby’s shoulders are stuck inside the mother’s body. After the delivery, the baby was diagnosed with Erb’s palsy, an injury to nerves around the shoulder that causes weakness or paralysis of the arm. The parents sued Dr. Wilson, Texas Health Presbyterian Hospital of Denton, and Alliance OB/GYN Specialists, claiming negligence in the handling of the delivery.

The case hinges on what standard of proof for negligence applies. The parents of the child argue the standard to use is the ordinary one, which requires proof that the physician deviated from what a reasonable and prudent physician would have done.

But Dr. Wilson’s side argues that the plaintiffs must prove the physician acted with “willful and wanton” negligence. State law says that standard applies in situations “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 (ED).”

The sides have argued over the intent of that language and whether it applies to this case. In the most recent ruling, the 2nd Court of Appeals in Fort Worth sided with the parents, deciding that the higher “willful and wanton” standard didn’t apply unless the patient had been first evaluated in a hospital ED, which the mother was not.

But the brief from TMA, TAPA, and others tells the Supreme Court that the “clear and unambiguous” wording of the law says the higher standard of proof applies for health care practitioners who treat patients in any of three separate areas of the hospital: the ED; the obstetrical unit; or a surgical suite if the patient was previously evaluated or treated in the ED. The brief argues the phrase “immediately following” only modifies “surgical suite” and doesn’t apply to the ED or to an obstetrical unit.

The language “reflects the real word of emergency care for pregnant patients. The [Texas] Legislature understood this reality and crafted language that provided a heightened standard of proof for both the emergency department and the obstetrical unit,” according to TMA’s brief.

However, if the appeals court’s interpretation of the law is accepted, “physicians and hospitals will be incentivized to route pregnant patients through the emergency department instead of sending them directly to the obstetrical unit regardless of whether the emergency department is the best place for those patients to receive care,” TMA’s brief says. “In re-routing patients, valuable time for intervention will be lost.”

Last Updated On

October 23, 2018

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Joey Berlin

Associate Editor

(512) 370-1393

Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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