AUSTIN - A medical malpractice case over the alleged delayed treatment of a rattlesnake bite is currently before the Texas Supreme Court and has attracted the attention of several health care associations, including the Texas Alliance for Patient Access.
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.
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, 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.
“This Petition asks whether a physician can breach the standard of care with willful and wanton negligence by merely following a treatment protocol for the patient’s exact condition,” the petition states. “The Court of Appeals overturned a summary judgment in Dr. Marsillo’s favor based on the possibility that the guideline she followed was an objectively unreasonable risk of harm and that she was subjectively aware of that risk. And the Court of Appeals never explained how Dr. Marsillo was consciously indifferent to any risk by following the protocol. Answering this important issue will guide future cases on this important aspect of emergency medical care.
“But unless reversed, the Court of Appeals’ decision will guide future cases and make it virtually impossible for emergency medicine providers to obtain summary judgment.”
Court records show that on Dec. 22 the high court received an amici curiae brief in support of the petition. The brief was submitted by the Texas Alliance for Patient Access, 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.
“Consequently, this heightened negligence standard of proof cannot compute with the Third Court’s mere ‘possibility’ of evidence summary judgment standard,” the brief states. “To do so defeats the purpose of Section 74.153, to insulate emergency medicine physicians and health care providers from liability in all but the most egregious circumstances.”
The brief argues that the standard required to defeat a no-evidence summary judgment is long established. A showing of more than a scintilla of evidence to create a genuine issue of material fact must exist. If there is less than a scintilla of evidence, summary judgment is proper.
“Upholding the Third Court of Appeals’ summary judgment reversal based on a possibility of fact establishes a lesser standard with worrisome implications,” the brief states. “If allowed to stand, the lesser standard frustrates the legislative intent behind Section 74.153 and promises to promote the very circumstances the legislature sought to correct in enacting the statute.”
Supreme Court case No. 22-0835