5th COA--Turner v. Franklin; Applying the Emergency Medical Care Standard

This summary provided by Mike Wallach of Wallach & Andrews.

On August 13, 2010, the Dallas Court of Appeals issued an opinion making three important holdings regarding the emergency medical care standard set forth in section 74.153 of the Civil Practice and Remedies Code:

• The emergency medical care standard applies in ER cases even where the diagnosis made is a non-emergent condition;
• 
  
  The willful and wanton standard in the law means "gross negligence"; and
• 
  
  Summary Judgment is an available remedy to deny claims of gross negligence in this context.

Facts of the CaseThe case involves a 14-year old boy who presented at the ER with testicular pain. The symptoms could have been testicular torsion, which is an emergency, or epididiymitis, which is not. The doctors incorrectly diagnosed the boy with epididiymitis and sent him home with antibiotics and pain medication. Several days later, the boy was seen by an urologist and diagnosed with torsion. The delay in treatment of the torsion resulted in loss of the testicle.

Emergency Care
The Plaintiffs argued that the willful and wanton standard set forth in section 74.153 did not apply because the defendant doctors diagnosed the boy with a non-emergent condition. After reviewing the statutory definitions of "bona fide emergency services" the court concluded that the section must cover all emergency treatment regardless of the ultimate diagnosis. The Court explained this conclusion because (1) the diagnosis itself constitutes medical care covered under the statute, (2) the plaintiff's position would create an incentive for doctors to assume the worst to avoid liability, (3) the plaintiffs asked for the question to be a retrospective determination when the statutory language anticipated a prospective one.

Gross Negligence
The court also determined that "willful and wanton" is the equivalent of gross negligence. The court reached this decision by quoting portions of the House Bill 4 legislative debate in which a senator stated that the standard "is basically a gross negligence standard." The Court also cited other cases in which similar language was held to mean "gross negligence."

Summary Judgment
Finally, the Court rejected the notion that a claim of gross negligence under the statute could not be denied on summary judgment. While the Court explained that, in light of the subjective nature of the elements, "summary judgment usually will be inappropriate," it can be available under certain circumstances. In fact, the Court upheld the summary judgment granted to one of the defendants.

See the opinion at Turner v. Franklin.