Should the Standard of Care Be Lower For Emergency Care?*

By Ronald L. Scott

Two newly enacted Texas laws recognize the difficulties physicians face in providing emergency care to patients, often without benefit of a complete medical history or a prior physician-patient relationship.

Texas legislators recently passed House Bill 4, sweeping “tort reform” legislation including caps on non-economic damages (e.g., pain and suffering) in medical malpractice actions. The hotly debated legislation may still require voters to approve an amendment to the state constitution to be totally effective. Although the tort reform debate has been well publicized in Texas and nationally, one section of the new law has received little attention in the press.  Prior law in Texas extended protection to “good Samaritans” who provide emergency care at the scene of an emergency.  Such persons are not civilly liable for an act performed during the emergency unless the act is “wilfully or wantonly negligent.”  The prior law did not extend protection for actions within a hospital or other health care facility or during medical transport.

The new law limits a physician’s or other health care provider’s liability for all emergency care, even if the emergency care was given in a hospital emergency room, obstetrical unit, or surgical suite following the evaluation of a patient in a hospital emergency room.  Importantly, the new law also alters the standard of proof required for a plaintiff to prove medical malpractice.  For a physician to be held liable in malpractice for emergency care, the plaintiff must either prove that the physician was wilfully negligent, or that he acted with “conscious indifference or reckless disregard for the safety of others.”  The law only applies to emergency care, and does not extend to follow-up care after the patient is stabilized or to care unrelated to the original emergency.

The law extends further protection to emergency health care providers by requiring a series of jury instructions.  The jury must be told whether the provider was able to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications.  The jury must also be told whether there was a pre-existing physician-patient relationship, the circumstances constituting the emergency, and the circumstances surrounding the delivery of the emergency medical care.

The second law (House Bill 1592) that draws a distinction between emergency and other care is a new criminal statute making it a felony for a physician to perform surgery while intoxicated.  As first introduced, the law would simply have criminalized such conduct, but a floor amendment added a provision that the intoxication must “place the patient at a substantial and unjustifiable risk of harm.”  Supporters of the amendment argued that otherwise a surgeon could be at risk of prosecution for drinking a few sips of wine.  A second floor amendment creates an affirmative defense in favor of the surgeon if he performed the surgery in an emergency.  This new law has received publicity mostly in “news of the weird” web sites.

* Reprinted with permission from Internal Medicine World Report, August 2003.