ER Doctor’s Failure to Diagnose Heart Attack Subject to High Willful, Wanton Standard

A woman presented to the emergency room (ER) complaining of severe chest pain radiating down her left arm. Hospital personnel assigned her to an exam room in the emergency department. Nurses ordered an EKG, lab work, and a chest x-ray. Approximately forty minutes after her arrival, an ER doctor saw her.

The ER doctor interviewed the woman and reviewed the notes taken by the nurses upon her arrival. The woman complained that the chest pain had lasted three hours, was still present, was sharp on the left side of her chest, and that it was nonradiating. It was noted that she was overweight and had a family history of coronary artery disease. The ER doctor noted in her chart that there was no nausea, vomiting, sweating, shortness of breath, palpitations, cough, weakness, or dizziness. He also noted that it did not hurt to breathe. The ER doctor did not make any diagnosis at the end of the initial interview.

The ER doctor ordered another round of tests, including another EKG and blood work, to be conducted ninety minutes after the initial tests. When the second blood test came back, the ER doctor noted that her creatine kinase cardiac enzymes were unchanged between the first and second tests. Both her creatine kinase and troponin cardiac enzymes were within the normal range. The ER doctor noted both EKGs were not abnormal.

The ER doctor diagnosed the woman with atypical chest pain and determined that she was stable. The ER doctor discharged the woman with a prescription for the pain. The woman died approximately fourteen hours later of probable acute myocardial infarction.

The woman’s survivors filed a medical malpractice action against the ER doctor. The complaint asserted that the ER doctor’s treatment fell below the applicable standard of care. Specifically, the complaint alleged that the ER doctor failed to realize that the woman was in the process of having an acute myocardial infarction. The complaint contended that the ER doctor should have kept the woman in the ER longer for additional testing and observation, that he should have had a cardiac catheterization immediately performed on her, and that he should have requested a cardiovascular consultation.

The woman’s survivors filed a motion for partial traditional and no-evidence summary judgment in which they argued that the willful and wanton standard of proof set out in the emergency care statute did not apply in this case. The ER doctor filed a traditional and no-evidence motion for summary judgment in which he asserted that the statute did apply and that the woman’s survivors had not produced any evidence that he acted with willful and wanton negligence. The 350th District Court, Taylor County, granted the ER doctor’s no-evidence motion for summary judgment.

The Court of Appeals of Texas, Eastland, affirmed. The court held that the ER doctor provided the woman “emergency medical care” such that the emergency care statute’s heightened willful and wanton negligence standard applied and the woman’s medical expert’s conclusory deposition testimony that the ER doctor was grossly negligent did not raise a fact issue necessary to defeat the ER doctor’s no-evidence motion for summary judgment under the applicable willful and wanton negligence standard.

The ER doctor provided to the woman “emergency medical care” such that the emergency care statute’s heightened willful and wanton negligence standard applied. “Emergency medical care,” as contemplated in the emergency care statute encompasses two elements: (1) the type of care provided and (2) the circumstances under which those services are provided. The court reasoned that it is the severity of the patient’s condition, its rapid or unforeseen origination, and the urgent need for immediate medical attention, including diagnosis, treatment, or both, in order to minimize the risk of serious and negative consequences to the patient’s health that comprise the circumstances of emergency medical care as contemplated in the emergency care statute. The court concluded that the ER doctor provided the woman “emergency medical care” such that the emergency care statute’s heightened willful and wanton negligence standard applied because the ER doctor did not believe the woman was stable when she presented to the ER and the woman had a serious condition requiring emergency treatment. The ER doctor’s actions were in response to the sudden onset of acute and severe symptoms where the lack of immediate medical attention could reasonably be expected to result in serious consequences to the woman’s health and that his actions constituted “emergency services” within the meaning of the emergency care statute.

The woman’s medical expert’s conclusory deposition testimony that the ER doctor was grossly negligent did not raise a fact issue necessary to defeat the ER doctor’s no-evidence motion for summary judgment under the applicable willful and wanton negligence standard. “Willful and wanton negligence” is the equivalent of gross negligence, which is comprised of two elements, one objective and one subjective. For the objective element, the act or omission must depart from the ordinary standard of care to such an extent that it creates an extreme degree of risk of harming others. For the subjective element, there must be actual, subjective awareness of the risk involved and a choice to proceed in conscious indifference to the rights, safety, or welfare of others. The survivors’ expert’s testimony, which provided no explanation of the basis for his opinions, did not address whether the ER doctor was subjectively aware of an extreme risk or acted with conscious indifference to the rights, safety, or welfare of others, as was necessary to elevate ordinary negligence to gross negligence, or willful and wanton negligence.

The Court of Appeals of Texas, Eastland, affirmed the trial court’s grant of the ER doctor’s no-evidence motion for summary judgment.

See: Burleson v. Lawson, 2016 WL 687213 (Tex.App.-Eastland, February 18, 2016) (not designated for publication).

See also Medical Law Perspectives, November 2013 Report: Diagnosis and Treatment of Heart Attacks: Liability Issues

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care

For medical journal articles regarding failure to diagnose acute myocardial infarction see:

Bajaj A, Sethi A, Rathor P, et al. Acute Complications of Myocardial Infarction in the Current Era: Diagnosis and Management. J Investig Med. 2015 Oct;63(7):844­55. doi: 10.1097/JIM.0000000000000232. PMID: 26295381.
Salam I, Hassager C, Thomsen JH, et al. Is the pre­hospital ECG after out­of­hospital cardiac arrest accurate for the diagnosis of ST­elevation myocardial infarction? Eur Heart J Acute. Cardiovasc Care. 2015 May 5. pii: 2048872615585519. PMID: 25943555.
Lofthus DM, Khalili H, Raja VN, et al. Accuracy of acute myocardial infarction clinical diagnosis and its implications. Int J Cardiol. 2015;186:54­6. doi: 10.1016/j.ijcard.2015.03.271. PMID: 25804472.

For law articles discussing failure to diagnose heart attacks see:

Jim Leventhal, Emergency Room Malpractice, 49-MAY Trial 26 (2013).
Alison Barnes, Prevention Paradigms, Over-Diagnosis and Treatment, and Mad Med, 12 Marq. Elder’s Advisor 1 (2010).
Robert Steinbuch, Preventing Under-Equipped Medical Facilities from Killing Heart Attack Patients: Correcting Inefficiencies in the Current Regulatory Paradigm for Providing Critical Health Care Services to Patients with Acute Coronary Syndrome, 17 Health Matrix 17 (2007).

For news articles regarding diagnosing heart attacks see:

Charles Moore, Simple Thermometer­Like Device To Help Doctors Diagnose Heart Attack, Cardiovascular Disease News (May 21, 2015).
Sangeeta Ghosh Dastidar, Blood Test can Help Diagnose Heart Attack: Researchers, International Business Times (September 21, 2011).
Val Wadas-Willingham, Tests for biomarker may diagnose heart attack within hours, CNN (blog) (December 27, 2011).