Some states enacted stringent standards for asserting medical malpractice claims against emergency department (ED) providers long before the COVID-19 pandemic.

In Texas, a “willful and wanton negligence” requirement has applied since 2003 to healthcare liability claims that arise out of the provision of emergency medical care.1

“This is an exceptionally difficult standard to meet,” says David A. Hyman, MD, JD, professor of health law and policy at Georgetown University.

Plaintiff attorneys in Texas probably will decline to take most cases involving ED treatment going forward, according to Hyman, “which, in turn, should result in a reduction of malpractice premiums for ED physicians.”

The Texas statute permits a plaintiff to recover for mistreatment when the provider “departed from accepted standards of medical care” and the claimant establishes by a preponderance of the evidence that provider committed “willful and wanton negligence.”

“The ‘willful and wanton’ standard has been taken to mean gross negligence,” says Charles Silver, JD, a professor of law at the University of Texas at Austin. To establish gross negligence, Silver says a plaintiff must prove the provider’s act or omission involved an extreme degree of risk. Additionally, the plaintiff must prove the provider knew of the risk involved, and proceeded with conscious indifference to it.

“The first element is objective. The second is subjective, meaning that it requires evidence of a provider’s actual knowledge,” Silver explains.

Plaintiff attorneys occasionally argue in medical malpractice cases that gross negligence occurred. “It is difficult to find examples of cases in which they succeed,” Silver says. Here are three examples of unsuccessful attempts:

In a 2016 case, the Texas Court of Appeals ordered that summary judgment be granted in favor of the defendants, who failed to diagnose rhabdomyolysis.2 This ultimately caused the patient to develop compartment syndrome and suffer an amputation. “The court found no evidence that the physicians departed from the standard of case so greatly as to create a severe risk of harm, and no evidence that they knew of the risk to the patient and ignored it,” Silver reports.

A patient died of a heart attack a few hours after discharge from the ED; the family sued. The court of appeals sustained a jury verdict in favor of the nurses on staff, even though there was no disagreement that the patient was misdiagnosed.3 After reviewing the evidence, the court agreed the nurses’ mistake led to the patient’s death. “But the court found a reasonable basis in the evidence for the jury’s conclusion that the nurses neither disregarded what they knew to be pain of a cardiac origin, nor allowed a patient to be discharged whom they knew to be in an unstable emergent condition,” Silver notes. The evidence showed only that the nurses failed to exercise reasonable care.

The parents of a baby whose shoulder was dislocated during birth sued the obstetrician and the hospital, claiming negligence.4 “The Texas Supreme Court affirmed a partial summary judgment in favor of the doctor, agreeing with the trial court that proof of willful and wanton negligence was required, and that the doctor’s conduct did not meet that standard,” Silver explains.

One of the few malpractice cases that did succeed in proving gross negligence involved some unusually egregious circumstances. The physician defendant was on probation and subject to a disciplinary sanction imposed by the Texas Medical Board.5

“Hospital bylaws apparently prohibited physicians on probation from being on staff,” Silver observes. “Other doctors on staff testified that the doctor was a problem.”


  1. Texas Civil Practices and Remedies Code Ann. § 74.153.
  2. Ho v. Johnson, No. 09-15-00077-CV, 2016 WL 638, 046 (Texas App. Feb. 18, 2016).
  3. Christus Health Se. Texas v. Licatino, 352 S.W.3d 556, 559 (Texas App. 2011).
  4. Texas Health Presbyterian Hospital of Denton v. D.A., 569 S.W.3d 126, 128 (Texas Dec. 21, 2018).
  5. Billy Pierce v. East Texas Medical Center and Dr. Gary Boyd and the ETMC Digestive Disease Center, Cause No. 16-0853-C in the 241st District Court in Smith County (Texas January 2018).