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Willful and Wanton in Texas

Hossfeld, George MD

doi: 10.1097/


Gov. Rick Perry brought tort reform to Texas in 2003 that has been wildly successful. The reform included caps on noneconomic liability, such as pain and suffering limits at $750,000, and changes to joint and several liability, such as financial responsibility being limited to how much each party is deemed at fault rather than 100 percent for one percent guilt. But there was also a historic game changer for emergency physicians. Currently, in almost all medical practices, physicians are held to a standard of care that a reasonably qualified physician would practice in a similar situation.

After the 2003 Texas tort reform, that standard was replaced by one specifying that an emergency physician could only be guilty of malpractice if his care exhibited willful and wanton disregard for the patient's welfare. Why are emergency physicians accorded this unique difference? Emergency medicine was singled out because care occurs in a highly charged environment in which doctors and nurses are forced to take immediate action with a dearth of information and under time constraints.



Not surprisingly, malpractice attorneys see this very differently. Strangle the golden goose, and the farmer will scream bloody murder. One plaintiff attorney, Jon Powell of San Antonio, likened the willful and wanton standard to “a Nazi death camp guard.” Others alleged that emergency physicians must come to work “drunk or high or purposely hurt a patient” for them to be found guilty of malpractice. Similar rants are numerous and equally inflammatory. All imply an underlying fundamental that is inherently false about physicians. They imply that some physicians are essentially bad people.

The willful and wanton standard implies something foreign to many attorneys. Physicians are given a special status that almost no business person in any field can claim. It simply assumes that physicians, emergency physicians in particular, are out to help patients. They are fallible, but that is the nature of humanity, and should not obscure the fact that their goal is as simple as altruism can be. End of story.

Emergency physicians are granted this special status not the least due to their commitment to provide medical care to all comers without regard for ability to pay. No wonder this is so foreign to the legal eagles. Tell me another profession, excepting religious and Salvation Army folks, that provides goods or services without regard to the ability to pay. Didn't think so.

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Dr. Hossfeldis an assistant professor of emergency medicine at the University of Illinois-Chicago. He is a past president of the Illinois College of Emergency Physicians, and has been involved in the legal side of emergency medicine for more than 25 years. A collection of his columns is available on the EMN web site:

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