In our healthcare system the only method a patient has to hold a doctor or hospital responsible for botched medical care is through the medical malpractice system. Because the medical field in the United States is a profit-based system, only substantial financial judgments that make malpractice more costly than proper care can reduce the number of avoidable healthcare provider errors. Unfortunately, due to the efforts of powerful lobbies for the insurance and medical fields, many states have enacted so-called “tort reform” laws that severely limit the rights of patients who have been injured by their medical providers. One such law is making it difficult for a Texas man and his two children to recover for the death of his wife that was allegedly caused by a missed emergency room diagnosis.
Texas Woman Allegedly Died Because ER Did Not Properly Diagnose Her
News Channel WFAA reports that two young boys are growing up without a mother because an emergency room failed to properly diagnose her. The two boys were only two and seven years old when their mother went to the emergency room at Arlington Memorial Hospital in 2013. According to her husband she had suffered a seizure and was incoherent. She underwent a CT scan which shows clearly defined dark spots on her brain. According to the family’s attorney it should have been obvious to anyone that there was blood on her brain. But the emergency room doctors sent the woman home after diagnosing her with a possible sinus infection. Her husband claims to have argued with hospital personnel, and that he pointed out that he watched her have a seizure. Five hours after the woman was discharged she had another seizure. According to her attorney her brain aneurism could have been treated if the ER had properly diagnosed it, but instead the mother of two lost her life. According to CBS Dallas-Fort Worth, her family is now suing, but they have a tough road ahead of them. Because unlike most medical malpractice cases in most states, they do not just have to show that the ER doctors were negligent in their treatment of the woman. Instead they have to prove that the doctors were “grossly negligent” thanks to a Texas tort reform law.
Texas’ Tort Reform Law Places an Extremely High Burden on the Deceased Woman’s Family
Normally in a medical malpractice case an injured patient has to show that his or her healthcare provider treated him or her in a negligent manner. Generally, to be negligent is to fail to take proper care in doing something, that is, to fail to live up to the standard of care. The standard of care in medical malpractice cases is influenced by the standard treatment procedures in a given situation. This standard works well, in that doctors are not held responsible for totally unforeseeable patient outcomes but they are expected to live up to professional standards. Texas, however, has chosen to use a much higher burden of proof in emergency room malpractice cases, in that it requires that plaintiffs prove “gross negligence.”
Gross negligence under Texas law is an act or omission involving subjective awareness of an extreme degree of risk, indicating conscious indifference to the rights, safety, or welfare of others. What this means in practice is that emergency room doctors who are not providing care that is up to the standard of care in their profession can get away with it, and patients have no recourse. Now, maybe this particular woman’s family will be able to surmount this extreme hurdle. But many patients and families who have been wronged cannot do so. This allows doctors to continue to provide substandard care with no threat of meaningful consequences, and provides a perfect example of how tort reform hurts patients.
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