AUSTIN, Texas (Legal Newsline) - Parents who wanted $1 million in compensation for the suffering of their daughter after she was bitten by a rattlesnake have no case against the emergency-room doctor who refused to immediately administer antivenom, the Texas Supreme Court ruled.
Affirming the gross negligence standard for emergency room doctors under Texas law, the Supreme Court said plaintiffs failed to present evidence Dr. Kristy Marsillo was liable for following her hospital’s protocol for treating snakebite wounds. An appellate court ruled the case should go to trial, based on an opinion by an expert who also appears on the popular TV documentary series “Kings of Pain.”
Robin and Dana Dunnick sued after Robin’s 13-year-old daughter Raynee was bitten by a rattlesnake while walking her dog in her yard. She was transported to Seton Medical Center, where Dr. Marsillo followed the hospital’s snakebite treatment guidelines, based on recommendations of the American Academy of Family Practice and the manufacturer of CroFab antivenom.
Those guidelines set up a seven-part process for evaluating whether and when to administer antivenom, based on symptoms such as the severity of the wound, nervous system effects and blood coagulation levels. Antivenom is supposed to be administered if the patient has a score of 4 or more.
Raynee’s symptoms progressed to 3 by 11:20 p.m. and a few minutes later her lab work showed she her score was 5, when the hospital administered the antivenom.
Raynee was transferred to another hospital, where she recovered and was released a day later.
In their lawsuit, the Dunnicks cited an opinion by their expert witness Dr. Benjamin Abo, a Florida snakebite expert and ER physician who also appears in the “Kings of Pain” show on the History Channel.
Dr. Abo said Raynee should have received antivenom immediately, under a “unified treatment algorithm.” The appeals court ruled this opinion created a question of fact for a jury to decide.
The Texas Supreme Court disagreed, in a Jan. 12 opinion by Chief Justice Nathan Hecht.
Administering antivenom is “not a risk-free proposition” and Dr. Abo didn’t explain why Dr. Marsillo should have deviated from her hospital’s guidelines. The expert’s opinion “consists solely of conclusory assertions,” the court said, also rejecting an affidavit from Robin Dunnick describing how Dr. Marsillo failed to respond to her pleas for antivenom.
None of that proved conscious indifference as required under the law, the high court said.
Texas law grants heightened protection from lawsuits to emergency room doctors. Plaintiffs must show doctors deviated from the standard of care “with willful and wanton negligence.” While the law doesn’t define willful or wanton, Black’s Law Library cites one source describing wanton as “reckless plus.”
Most Texas statutes using both terms also include the word “intentional,” but the emergency room law does not. So courts have interpreted the ER law to mean gross negligence, or knowingly and recklessly exposing someone to an unreasonable risk of harm.