448 S.W.3d 159
Tex. App.2014Background
- Tammy Crocker presented by helicopter to Good Shepherd ED with acute stroke symptoms (speech difficulty, facial droop, right-sided weakness) after 9-1-1 call; triaged urgent and placed in exam room.
- ED physician Dr. Babcock evaluated her within minutes, ordered CT, chest x-ray, ECG and labs; CT (non-contrast) ruled out hemorrhage but could not exclude ischemic stroke.
- Babcock consulted a neurologist about tPA but, relying on rapid symptom improvement (an exclusion for tPA), declined to administer it; the 3-hour tPA window expired while patient remained in ED.
- Crocker was later diagnosed with a large acute ischemic stroke and alleges lasting neurologic deficits; she sued for malpractice based on missed/untimely diagnosis and treatment.
- Defendants invoked Tex. Civ. Prac. & Rem. Code § 74.153, arguing emergency-care cases require proof of willful and wanton negligence; trial court applied § 74.153 and denied Crocker’s no-evidence and traditional summary judgment motions.
- On interlocutory appeal, the court considered whether § 74.153’s heightened standard applies when the alleged malpractice involves diagnosis/treatment in the ED for a suspected stroke.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 74.153 applies to Crocker’s claims arising from ED diagnosis/treatment of suspected stroke | Crocker: § 74.153 does not apply because she received non-emergency care (no stroke code activation, no tPA) or the ED never actually provided emergency services for ischemic stroke | Defendants: The care occurred in an ED for a sudden, acute condition; actions to diagnose/treat were bona fide emergency services, so § 74.153 applies | Held: § 74.153 applies; the patient presented with an emergency and ED staff took immediate diagnostic/treatment actions, so the willful-and-wanton proof standard governs |
| Whether ‘‘bona fide emergency services’’ requires actual emergency treatment as defined in Health & Safety Code § 311.021 | Crocker: Emergency-services definition should be narrow—must be services usually/customarily provided to sustain life or prevent serious permanent impairment; absent activation of stroke protocol or tPA, care was non-emergency | Defendants: Legislative definitions and context of Chapter 74 encompass diagnosis/treatment efforts in ED for sudden acute conditions even if specific protocols weren’t activated | Held: Court rejected narrow Health & Safety Code definition for Chapter 74 purposes; context and ED actions govern whether services were emergency in nature |
| Whether Turner v. Franklin controls by equating ‘‘bona fide’’ with good-faith diagnostic/treatment efforts | Crocker: Turner is wrong to equate bona fide with merely good-faith actions and to cover diagnoses of non-emergency conditions | Defendants: Turner supports applying § 74.153 when ED diagnosis/treatment efforts respond to an acute emergency presentation | Held: Court declined to follow Turner’s reasoning in parts but reached the same result—§ 74.153 applies because Crocker presented with an emergency and ED personnel undertook immediate diagnostic/treatment actions |
| Whether failure to follow hospital stroke-code protocol prevents application of § 74.153 | Crocker: Failure to activate stroke code shows no emergency services were provided | Defendants: Nurses triaged, monitored, obtained history, and implemented orders—immediate responsive actions constitute emergency services | Held: Failure to activate protocol may be poor practice but does not negate that emergency services were provided; § 74.153 applies |
Key Cases Cited
- Turner v. Franklin, 325 S.W.3d 771 (Tex. App.—Dallas 2010) (addressed whether ED diagnosis/treatment of non-emergency condition falls under § 74.153)
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (standard for granting traditional summary judgment; de novo review)
- Sudan v. Sudan, 199 S.W.3d 291 (Tex. 2006) (no-evidence summary judgment framework)
- Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (definition of more than a scintilla of evidence standard)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (less-than-a-scintilla described as mere surmise or suspicion)
- Christus Health Southeast Texas v. Licatino, 352 S.W.3d 556 (Tex. App.—Beaumont 2011) (examples of ED triage/treatment recognized as emergency medical care under § 74.153)