By: Ben Passey
The Texas Supreme Court will hear oral arguments in Marsillo v. Dunnick, No. 22-0835, on October 5, 2023. In this healthcare-liability claim arising from an emergency physician’s treatment of a snakebite, the main issue is whether the plaintiff has produced sufficient evidence of “willful and wanton negligence” by the physician to defeat a no-evidence motion for summary judgment.
When Raynee Dunnick presented to the emergency department with a rattlesnake bite, Dr. Kristy Marsillo implemented her treatment plan based on her clinical experience and patient observations, in conjunction with the hospital’s guidelines detailing when to administer antivenom to a snakebite victim. Dr. Marsillo ultimately administered the antivenom to Raynee three hours after she arrived at the hospital.
The Dunnicks sued, alleging that Dr. Marsillo should have administered the antivenom immediately and that her failure to do so was the proximate cause of Raynee’s lasting pain and impairment. Dr. Marsillo filed a no-evidence motion for summary judgment, asserting the family had no probative evidence that she acted with willful and wanton negligence in treating Raynee (the standard imposed by section 74.153 of the Texas Civil Practice & Remedies Code), and/or that Raynee’s injuries were proximately caused by Dr. Marsillo's negligence. The trial court granted Dr. Marsillo’s no-evidence motion for summary judgment.
The Austin Court of Appeals reversed and remanded. The Court concluded that plaintiff’s expert testimony, along with the mother’s testimony and some of Dr. Marsillo’s testimony, presented more than a scintilla of evidence of a “possibility” that Dr. Marsillo acted willfully and wantonly (that is, with gross negligence) despite her adherence to the hospital guidelines and her own medical judgment. See Dunnick v. Marsillo, 654 S.W.3d 224, 230-33 (Tex. App.—Austin 2022, pet. granted) (“[A]lthough Dr. Marsillo’s adherence to Seton Hays's snakebite treatment guidelines may explain why she decided to wait three hours after Raynee’s admission to order antivenom treatment in this case, it does not negate the possibility that, objectively, her adherence to the guidelines posed an extreme risk of harm to Raynee or that, subjectively, she was aware of that risk.). The Court also held the summary judgment evidence (i.e., the expert testimony) raised a genuine issue of material fact as to both elements of proximate cause. Id. at 233-34.
The Texas Supreme Court has granted Dr. Marsillo’s petition for review challenging the Court of Appeals’ decision. She argues that willful and wanton negligence is the same standard as gross negligence and that a “possibility” that such evidence might exist, rather than actual evidence of gross negligence, is a legally improper basis for summary judgment. She also argues that the summary judgment record contains no evidence to raise a genuine fact issue on the elements of proximate cause.
The family argues in response that the Court of Appeals did not err in concluding that the summary judgment evidence raised a genuine issue of material fact on both willful and wanton negligence and on proximate cause. The family contends that Dr. Marsillo’s reliance on the hospital snakebite guideline resulted in an extreme degree of risk to Raynee (the objective component of gross negligence) and that Dr. Marsillo was subjectively aware of that risk and consciously disregarded it (the subjective component of gross negligence) by waiting three hours to administer antivenom. The family also argues that the evidence raised a genuine fact issue as to proximate cause.
In December 2022, Cooper & Scully, P.C., on behalf of the Texas Alliance for Patient Access (TAPA), joined by the Texas Medical Association, Texas Osteopathic Medical Association, and Texas Hospital Association, filed an amicus curiae brief supporting Dr. Marsillo’s petition for review. Amici argued, among other things, that the Court of Appeals erred in its interpretation and application of the emergency care provisions of Chapter 74 of the Civil Practice & Remedies Code, that its interpretation frustrates the goals of the emergency care provisions intended by the Legislature, and that the consequences of its erroneous rulings include driving emergency care physicians and health care providers away from Texas—a result that Chapter 74 was designed to prevent.