Mike Kueber's Blog

December 25, 2010

Malpractice in a Texas emergency room

A recent article in the Texas Tribune reviewed whether emergency-medicine doctors should have the same standard of negligence as that of other doctors – i.e., ordinary negligence.    Since its tort reform in 2003, Texas law has required more than simple negligence; instead it requires “willful & wanton” negligence, which is essentially the same as gross negligence.  Although the Tribune did not overtly take a position on the fair standard for emergency-room negligence, there is no question that they devoted a lot more energy to showing that the “willful & wanton” standard causes grave injustices and gave minimal effort to showing the benefits of this variation of tort reform.

Non-lawyers may not have a good understanding of the practical difference between simple negligence and gross negligence, but suffice it to say that in car-accident claims, gross negligence is extremely difficult to prove unless the other driver was drunk.  Similarly, unless an emergency-room doctor acted like a drunk, an ER patient in Texas is unlikely to have a viable action for negligence. 

As support for this conclusion, the Tribune article noted that, since 2003, there have been only 150 lawsuits a year in Texas against emergency-room doctors, and considering the size of Texas, that is a surprisingly small number.

Coincidentally, I have a fourth-year medical-student son who is planning to specialize in emergency medicine, and for the past few weeks, he has been interviewing around the country for an emergency-medicine residency.  He reports that when the interviewers learn he is from Texas, they often acknowledge that Texas is a great place to practice not only because of its broad tort reform, but also because of its enlightened standard of “willful & wanton” for ER doctors.  Clearly, the tort reform is achieving one of its principal objectives – i.e., making Texas a desirable place to practice – but at what cost?

My son, of course, agrees completely with the “willful & wanton” standard.  He believes that ER doctors should be treated differently because they are often in situations where they have only sketchy information and no time for reflection.  In 20-20 hindsight, their decisions are often and easily second-guessed.  He says that happens all the time by the doctors who take over follow-up care of ER patients, and he can easily imagine how second-guessing from a plaintiff’s lawyer and a sympathetic jury will result in injustice against him.

I tried to explain to my son how the standard of “ordinary negligence” takes into consideration the context of any actions that occur, but he is reluctant to placed at the mercy of a sympathetic jury.  I can appreciate that – a jury will almost always err in favor of the injured patient instead of the affluent ER doctor and medical system.

Perhaps there is a middle ground that would provide a better balance between justice to the patient and justice to the doctor and medical system.  I would like to see some thought to affording economic damages (medical costs, lost wages, etc.) based on simple negligence, while requiring the higher standard for obtaining noneconomic damages (pain & suffering, legal fees).