Why is it so hard to sue an Emergency Room in Texas?
Most people assume that all medical malpractice cases use the same legal standard. They don’t. In 2003, Texas lawmakers created special protections for emergency care providers. This is detailed in Chapter 74 of the Texas Civil Remedies & Practice Code. As a result, patients injured by emergency room negligence face a much higher burden of proof than those treated in other medical settings.
Medical Malpractice Requires Proof of Negligence
As we have outlined before, there are four elements we have to prove to pursue a medical malpractice case in Texas. Those are:
- Duty: The healthcare provider owed you a duty.
- Breach: The healthcare provider breached that duty by failing to comply with the “standard of care.”
- Causation: That breach of the “standard of care” caused physical harm that would not have occurred with proper treatment.
- Damages: You suffered damages (pain, medical bills, lost wages, etc.) because of the harm.
The standard of care is defined as: “what a reasonably careful physician with similar training would have done under the same circumstances.“
Expert testimony is always required in medical malpractice cases in Texas. The plaintiff has to find a medical expert to establish the applicable standard of care and explain how the defendant deviated from it.
ERs Operation Under a Different Legal Standard
Patients can arrive at Emergency Rooms with several factors that make effective treatment difficult. Those include arriving:
- critically ill
- without medical records
- unconscious
- unable to communicate
- often needing split-second decisions
Texas law recognizes these realities. Rather than judging emergency physicians under ordinary standards, Chapter 74 requires something significantly more serious in ER cases.
Texas Chapter 74 Raises the Burden of Proof
Texas Civil Practice & Remedies Code §74.153 outlines the burden of proof the plaintiff must prove. For qualifying emergency medical care cases, we must prove that the provider acted with willful and wanton negligence. This goes beyond a simple mistake or poor judgment. Texas law provides a little more leeway for emergency care providers to make mistakes. This is because it assumes they are theoretically providing life-saving care.
This is one of the most plaintiff-unfriendly provisions in Texas medical malpractice law.
What does “Willful and Wanton Negligence” Mean?
It does not mean a simple mistake, incorrect diagnosis, poor judgment, or missed finding. Instead, juries must find conduct demonstrating an extreme departure from accepted standards. They also must find the conduct shows a conscious indifference or reckless disregard for the patient’s safety. This is a much higher threshold than proving an ordinary breach in the standard of care.
When Does This Higher Standard Apply?
This “ER Standard” generally applies to claims arising from emergency medical care provided in:
- a hospital emergency department
- an obstetrical unit under qualifying circumstances
- certain surgical situations immediately following ER evaluation
When the Higher Standard Does NOT Apply
There are some exceptions to emergency care. The heightened burden generally does not apply when:
- the patient has been stabilized and is receiving non-emergency treatment
- the care is unrelated to the original emergency
- a provider’s negligence caused a stable patient to become an emergency patient
Some ER malpractice claims can still proceed under ordinary negligence principles, but all the very specific factors need to be in place.
Why Expert Witnesses are Critical
The plaintiff must be able to find a qualified medical expert who is willing to testify to the court. They have to credibly explain:
- which standard of care applies in this instance;
- that the emergency medical provider breached that standard;
- that the breach caused you actual harm (not any underlying conditions);
- and why the conduct crossed the heightened legal threshold of “willful and wanton negligence.”
There are so many moving parts and factors in Emergency Rooms that can impact decisions the provider makes. Because of this, it is often difficult to find an expert willing to testify to these elements.
Can You Still Win an ER Malpractice Case?
Absolutely. Chapter 74 does not make emergency physicians immune from liability. Instead, it requires stronger evidence demonstrating that the provider’s conduct went beyond an ordinary mistake.
If you or a loved one suffered serious harm after emergency room treatment, don’t assume you have—or don’t have—a case based on the outcome alone. These claims involve unique legal standards, complex medical issues, and strict procedural requirements. An experienced Texas medical malpractice attorney can evaluate whether the care you received falls under the emergency medicine provisions of Chapter 74, and whether the evidence may satisfy the heightened burden of proof. Call our office today for a free and confidential consultation!