As a part of Tort reform in Texas, in order to find a physician providing emergency medical services guilty of negligence, the claimant must show that the doctor acted with willful and wanton negligence. Willful and wanton negligence is defined as gross negligence. Plaintiffs must prove that ER doctors acted with conscious indifference, or gross negligence, rather than simple negligence. This is extremely difficult to prove and is one of the primary reasons for the decrease in medical malpractice cases against emergency medicine physicians in Texas. However, recently a Texas court held a hospital liable for willful and wanton negligence for a missed MI. This is a rare precedent in Texas since the enactment of Tort Reform.
An elderly woman with history of diabetes and hypertension presented to ER with chief complaint of chest pain, chest discomfort and chest tightness. She was triaged as level 3 (low severity level), given albuterol nebulizer treatments and discharged home with a prescription for captopril. She he died at home the next day, autopsy reported that cause of death was MI (severe atherosclerotic disease was seen). It was later determined that during her brief stay in the ER, she had 2 EKGs done (one EKG was reported normal but the other showed a Septal Infarct).
The treating physician settled out of court and the hospital was found liable for negligence. The court found that prematurely discharging a patient with chest pain, improperly interpreting EKG results, and prescribing medication without first determining the effect it will have on the patient’s cardiovascular system constituted willful and wanton negligence (gross negligence).
More information on this case can be found here: http://www.beaumontenterprise.com/news/article/St-Mary-s-found-negligent-in-ER-death-737829.php