Supreme Court Agrees With TMA on Negligence Standard in Liability Case
By Joey Berlin


After performing a grammatical deep dive, the Texas Supreme Court has sided with an obstetrician-gynecologist who argued that a higher standard of negligence should apply in a lawsuit against him over complications from a 2011 delivery.

In his challenge to an appellate court’s decision, Marc A. Wilson, MD, a Denton OB-Gyn, had the support of the Texas Medical Association and the Texas Alliance for Patient Access (TAPA), which joined with other organizations in a friend-of-the-court brief successfully supporting Dr. Wilson’s argument regarding the grammatical intent of state negligence law. 

During the 2011 delivery, Dr. Wilson encountered shoulder dystocia, in which the baby’s shoulders were stuck inside the mother’s body. The baby was diagnosed with Erb’s palsy. The parents sued Dr. Wilson, Texas Health Presbyterian Hospital of Denton, and Alliance OB/GYN Specialists, claiming negligence in the handling of the delivery.

In court documents, the parents argued that the case should be decided on the ordinary standard for negligence, which requires proof that the doctor deviated from what a reasonable and prudent physician would have done. But Dr. Wilson argued that the plaintiffs had to prove he acted with “willful and wanton” negligence. According to state law, 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 construction of that language became central to the case. A district court sided with Dr. Wilson, who argued that the language was unambiguous and that the “willful and wanton” standard applied because he provided emergency care in a hospital obstetrical unit. But the 2nd Court of Appeals in Fort Worth ruled for the parents, who claimed the “willful and wanton” standard didn’t apply unless the patient was first evaluated in a hospital ED.

However, the brief from TMA, TAPA, and the other signatories said the phrase “immediately following” modifies only “surgical suite.” That would mean the higher standard of proof applies to health care practitioners who treat patients in any of three places: the ED; the obstetrical unit; or a surgical suite if the patient was previously evaluated or treated in the ED.

In December, the Supreme Court — after a dense analysis of the statute’s context and lack of clarifying punctuation — agreed with the argument of Dr. Wilson and TMA. It said the higher “willful and wanton” standard applies when a case “arise[s] out of the provision of emergency medical care in a hospital obstetrical unit, regardless of whether that care is provided immediately following an evaluation or treatment in the hospital’s emergency department.” In a written opinion that used the word “comma” 13 times, the high court called its interpretation “the only reasonable construction of the statute’s language.”

Brian Jackson, general counsel for TAPA, told TMA he applauded the Supreme Court’s decision. 

“It benefits both patients and health care providers by eliminating a needless stop at the [ED] on the way to the [obstetrical department],” he said. “And that is what the legislature intended.” 

Last Updated On

January 04, 2019

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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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