§ 74.153.Standard of Proof in Cases Involving Emergency Medical Care

The most consequential provision in the subchapter, because it changes the standard of liability rather than granting an immunity.

In a health care liability claim arising out of emergency medical care in a hospital emergency department, in an obstetrical unit, or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the claimant may prove that the treatment departed from accepted standards only if the claimant shows by a preponderance of the evidence that the physician or provider, with wilful and wanton negligence, deviated from the degree of care and skill reasonably expected of an ordinarily prudent physician or provider in the same or similar circumstances.

Ordinary negligence is not enough. A claimant must show conscious indifference to the patient's welfare, which is a far higher bar and is why emergency department claims in Texas rarely succeed.

The three settings are precise. Note the third: a surgical suite immediately following emergency department evaluation is covered, so the protection follows the patient into the operating room when they arrive through the emergency department.

Subsection (b) marks the boundaries, and both matter. The heightened standard does not apply to care provided after the patient is stabilized and receiving treatment as a nonemergency patient, nor to care unrelated to a medical emergency.

Nor does it apply to a physician or provider whose negligent act or omission proximately causes a stable patient to require emergency medical care. A provider cannot create the emergency through ordinary negligence and then claim the emergency standard for the consequences.