In a Texas medical malpractice case arising from an emergency room physician’s treatment of a snakebite, the issue was whether the plaintiff had produced evidence of “willful and wanton negligence” by the physician. Because antivenom poses risks to a patient, the hospital at which Dr. Kristy Marsillo worked developed detailed guidelines for the determination of whether and when administration of antivenom is appropriate. Marsillo followed those guidelines when treating rattlesnake-victim Raynee Dunnick. As a result, Marsillo began infusing Raynee with antivenom three hours after she arrived at the hospital and four hours after she was bitten.
Raynee was transferred to a children’s hospital where she continued to receive antivenom over the course of a few days before being released. Raynee’s parents sued Marsillo for medical malpractice , alleging that her failure to administer antivenom immediately upon Raynee’s arrival at the hospital caused Raynee lasting pain and impairment.
Texas medical malpractice law provides that a physician is not liable for injury to a patient “arising out of the provision of emergency medical care in a hospital emergency department” without proof that the physician acted “with willful and wanton negligence.” The trial court granted Marsillo’s no-evidence motion for summary judgment on breach of duty and causation, but the Texas court of appeals reversed.
The Texas The Supreme Court reversed the court of appeals’ judgment and reinstated the trial court’s summary judgment for Marsillo. The Texas Supreme Court began by examining the meaning of willful and wanton negligence. The parties and the lower courts had assumed that the term is synonymous with gross negligence. The Texas Supreme Court agreed that willful and wanton negligence is “at least gross negligence.”
The Texas Supreme Court stated that Raynee’s expert’s affidavit was conclusory and, thus, no evidence, and therefore held: “To survive Marsillo’s no-evidence motion for summary judgment, Raynee was required to adduce evidence that Marsillo should have disregarded the Guidelines’ detailed protocol and that her failure to do so showed that she was consciously indifferent to Raynee’s health. Reviewing the evidence in the light most favorable to Raynee, crediting evidence favorable to her if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not—all as we must—the evidence shows that Marsillo knew the significant risks of choosing when to administer antivenom to Raynee and was not indifferent to them but chose to follow the Guidelines. Marsillo’s motion must be granted “unless the nonmovant raises a genuine issue of material fact on each element.” Raynee did not. The trial court correctly granted summary judgment for Marsillo.”
Marsillo v. Dunnick, _ S.W.3d _ (Tex. Jan. 12, 2024) [22-0835].
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