Texas Appellate Court Allows Defendants to Prevail in Using Heightened Emergency Care Negligence Standard

The Court of Appeals for the Sixth Appellate District of Texas at Texarkana held in Crocker v. Babcock, et al., that the defendants in a healthcare liability lawsuit were entitled to utilize the willful and wanton negligence standard to determine whether their conduct departed from the accepted standard of care for emergency medical care in a hospital emergency department. The court reached this conclusion because the plaintiff, Tammy Crocker, presented to the medical staff with an emergency condition – a suspected stroke – and the immediate action taken with the purpose of diagnosing and treating this condition amounted to “emergency services.”

Ms. Crocker began experiencing stroke-like symptoms after collapsing on the floor of her home. She was described as alert, but unable to speak, with facial droop and right side weakness. Ms. Crocker was airlifted to Good Shepherd Medical Center in Longview, during which time an in-flight crew member notified either the emergency department charge nurse or another emergency department nurse of an inbound possible stroke patient. Although required by hospital protocol, the emergency department nurse who received the notification did not activate Good Shepherd’s stroke code protocol. Initially, Ms. Crocker was unable to move, speak, or smile, but she improved on the helicopter flight and was able to assist in moving herself onto the hospital gurney upon her arrival to the hospital.

Ms. Crocker’s case was noted as “urgent” upon her arrival to the emergency department. Dr. Babcock, her treating physician, ordered a CT scan without contrast of her brain as well as additional tests including: a comprehensive metabolic panel, a chest x-ray, an ECG, and a complete urinalysis. Dr. Babcock’s differential diagnosis included (1) cardiovascular accident, (2) transient ischemic attack (TIA), (3) dementia, and (4) paralysis. However, Dr. Babcock later changed his diagnosis of Ms. Crocker’s condition to acute, non-hemorrhagic cardiovascular accident.

Ultimately, Ms. Crocker was diagnosed with having suffered an Ischemic stroke. She filed a medical negligence lawsuit alleging damages based on the missed diagnosis and failure to treat her stroke, to which Dr. Babcock and the other defendants claimed they were providing emergency medical care and their conduct should therefore be governed by the heightened negligence standard contained in Section 74.153 of the Texas Civil Practice and Remedies Code. The issue left for the appellate court to resolve was whether Section 74.153 applied to the facts of this case.

Even though the court found that the heightened willful and wanton negligence standard applied to the defendants’ conduct, the court declined to follow the Turner analysis set forth by the Dallas Court of Appeals in Turner v. Franklin. In that case, the Dallas appellate court used various components of statutory language to piece together a comprehensive definition of “emergency medical care.” Essentially, under the Turner analysis, “emergency medical care” was found to be “any actions or efforts undertaken in a good faith effort to diagnose or treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or attempt to effect cures to those conditions,” provided “during the time period and under the circumstances specified in [the statute].” Under Chapter 74, emergency medical care is defined as care provided after the sudden onset of a medical or traumatic condition sufficiently severe to place the patient’s health in serious jeopardy, but specifically excludes care or treatment that “occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or that is unrelated to the original medical emergency.”

The Texarkana appellate court did not explain why it declined to follow the Turner analysis and instead stated that it would focus its analysis on the context in which the emergency department care was provided to determine whether Ms. Crocker received actual emergency services. The court found that Ms. Crocker presented to the hospital for emergency medical evaluation and treatment following a sudden onset of measurable neurological deficits. The court went on to state that the absence of immediate medical attention for this condition “could reasonably be expected to result in placing the patient’s health in serious jeopardy.” Moreover, the court concluded that Ms. Crocker presented with the type of medical condition that Section 74.153 was designed to address.

The court added that the failure to initiate stroke code protocol did not change the fact that the hospital took immediate action to respond to Ms. Crocker’s condition and that Dr. Babcock also took immediate action intended to diagnose Ms. Crocker’s suspected stroke following the sudden onset of her acute symptoms. In light of the immediate actions taken, the Court concluded that the defendants’ conduct was governed by the heightened willful and wanton negligence standard contained in Section 74.153.

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