THE OUTRAGEOUS AND SAD FACTS ABOUT EMERGENCY ROOM MEDICAL ERRORS

By Robert Schwartz

FACT #1: BAILEY & GALYEN receives 30–40 calls each month from potential new clients wanting to sue an emergency room doctor and hospital for their negligence.

FACT #2: Most of those potential new cases do actually involve clear negligence by the emergency room doctor and hospital.

FACT #3: Even with clear negligence by the emergency room doctor and hospital, you cannot pursue or file that case because the emergency room doctor and hospital are protected by Texas law.

The Texas legislature in 2007 amended the laws that deal with medical malpractice cases. Texas Civil Practice and Remedies Code Sec. 74.151, entitled Liability for Emergency Care, now states that a person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is willfully or wantonly negligent. The legislature has raised the level of proof required to file a lawsuit to the highest possible degree of negligence — willful or wanton negligence — which means the “medical error” must have been intentional. That’s right, to hold the emergency room doctor and/or the emergency room staff accountable for any serious injury or death, you must be able to show that the treatment or lack of treatment by the emergency room doctor and/or emergency room staff totally disregarded or was totally indifferent to the known consequences that the patient suffered. It requires proof of actual or deliberate intention to harm the patient, or, at a minimum, an absolute and complete indifference to or conscious disregard for the patient’s safety. That standard is insurmountable, and it slams shut the courthouse door on innocent victims.

Not being able to file a civil suit when a loved one has suffered serious complications, injuries or death from emergency room errors is a hard pill to swallow. How did this happen, you might ask? It is the result of a collision between the political agenda of tort reform and patient safety, where the political agenda won.

The problem is that tort reform advocates never believe that they will be the innocent victims of emergency room medical malpractice. Further, they all believe that if they are, their claim will be meritorious and, thus, different from all those frivolous medical malpractice claims they have heard so much about from other tort reform advocates. The fact is that emergency room medical malpractice happens very frequently, and those who thought they would never find themselves in the innocent victim’s shoes and who supported the popular political agenda of tort reform do not like not being unable to hold accountable those responsible for these serious injuries and deaths. Put another way, Texas law gives emergency room physicians and hospitals absolute and complete immunity.

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