AUSTIN - The Texas Supreme Court on Friday reinstated a summary judgment victory for the defendant in a medical malpractice case over the alleged delayed treatment of a rattlesnake bite.
The lawsuit was brought by Robin and Dana Dunnick, who, on behalf of their minor daughter, Raynee, sued Dr. Kristy Marsillo, alleging that Dr. Marsillo failed to exercise the appropriate standard of care for treating Raynee’s snakebite injury.
The high court found that 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,’” the opinion states. “Raynee did not. The trial court correctly granted summary judgment for Marsillo.
“We reverse the court of appeals’ judgment and reinstate the trial court’s summary judgment for Marsillo.”
Case background
Court records show the Dunnicks allege that Dr. Marsillo’s negligence included a three-hour delay of the administration of antivenom upon Raynee’s arrival to the emergency room, which caused further complications, such as permanent impairment, disfigurement, and ongoing pain and suffering.
As required by Chapter 74 of the Civil Practice and Remedies Code, the plaintiffs included an expert report that asserted snake envenomation is a time-sensitive emergency and to not immediately administer antivenom is negligent and falls below the standard of care for an emergency medicine physician.
Court records show Dr. Marsillo filed a no-evidence motion for summary judgment on the grounds that there was no probative evidence that she acted with willful and wanton negligence in treating Raynee, which the trial court granted.
The Third Court of Appeals reversed the judgment, concluding that “the summary-judgment record contains more than a scintilla of probative evidence to show that Raynee’s complained-of injuries were a foreseeable consequence of Dr. Marsillo’s failure to promptly administer antivenom,” the opinion states.
On Nov. 16, 2022, Dr. Marsillo filed a petition for review in the Texas Supreme Court, arguing that the Third Court erred by finding fact issues when none existed, court records show.
The case attracted the attention of several health care associations, including the Texas Alliance for Patient Access.
Court records show that on Dec. 22, 2022, the high court received an amici curiae brief in support of the petition. The brief was submitted by TAPA, Texas Medical Association, Texas osteopathic Medical Association and Texas Hospital Association.
The brief states that Section 74.153 heightens the standard the plaintiff must meet, from general negligence to willful and wanton negligence.
Supreme Court case No. 22-0835