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Doctors who provide care in emergencies with no intention of seeking payment will have an easier time claiming the protection of the state’s Good Samaritan statute under a recent Texas Supreme Court ruling and a change in the law that takes effect on Sept. 1. On June 26, the high court held unanimously in McIntyre v. Ramirez, et al. that a person claiming the Good Samaritan defense provided under Texas Civil Practice and Remedies Code � 74.001 must prove that he “would not ordinarily receive or ordinarily be entitled to receive payment under the circumstances in which the emergency care was provided.” The decision reverses a 2001 decision by Austin’s 3rd Court of Appeals that a physician failed to prove conclusively that he was entitled to protection under the statute. Written by Justice Dale Wainwright, the state Supreme Court’s opinion in McIntyre included an English lesson. Although the adverb “ordinarily” appears only before the verb “received” in TCPR � 74.001(d), “ordinarily” modifies both “received” and the verb phrase “be entitled to receive,” Wainwright wrote for the court. “Of all the lawsuits in my 23 years as a lawyer, this is the most important one I’ve ever handled,” says James Ewbank, attorney for Dr. Douglas K. McIntyre, an obstetrician sued for negligence in connection with neurological injuries an infant allegedly suffered during a complicated birth. Ewbank, a shareholder in Austin’s Ewbank & Byrom, says the opinion will encourage doctors to respond to emergencies in their specialties. Laurie Higginbotham, an attorney for plaintiff Debra Ramirez, says the decision — although it addresses an issue of first impression — is moot because of a change the Legislature made in the law. However, Ewbank says the decision is important. “It reiterates that the Legislature has a strong policy of encouraging doctors to respond to emergencies without fear of being sued,” he says. “The legislative change is sort of belt and suspenders.” Higginbotham, an associate with Austin’s Whitehurst, Harkness, Ozmun & Brees, says the decision is disappointing. The court essentially ruled that any doctor other than a patient’s attending physician does not have a standard for care for emergency treatment provided in a hospital, she says. “Our position all along has been there is a big difference between a doctor providing emergency care in a ditch along the side of the road and a doctor providing emergency care in a hospital. The court has said there is no difference,” Higginbotham says. ‘DR. STORK’ PAGE The medical-malpractice action in McIntyre stems from the 1998 emergency delivery of an infant at St. David’s Medical Center in Austin. The state Supreme Court wrote that McIntyre, who was not Ramirez’s doctor, responded to a “Dr. Stork” page sent because a delivery was in progress without a physician present. When McIntyre arrived in Ramirez’s delivery room, a nurse was supporting the baby’s head, and there were indications of shoulder dystocia, which occurs when a baby’s shoulder becomes lodged against the mother’s pelvic bone, the opinion said. According to the opinion, McIntyre swept the infant’s posterior arm across his chest, delivered the arm and then delivered the anterior shoulder and the rest of the baby. The manipulations by McIntyre, who was in the delivery room for only about six minutes, allegedly caused paralysis of the baby’s upper right arm and shoulder, the opinion said. McIntyre moved for summary judgment, claiming the affirmative defense available under the Good Samaritan statute for a person who provides health care in good faith without being willfully or wantonly negligent. At a hearing on his motion, McIntyre testified that neither he nor any doctor in Travis County would have charged a fee to Ramirez or anyone else under the circumstances of the case. Scott McCown, former judge of Austin’s 345th District Court, granted McIntyre’s motion, but the 3rd Court of Appeals reversed in a 2-1 decision, holding that it was a fact issue whether McIntyre’s emergency medical treatment of Ramirez was excluded from the Good Samaritan statute’s protection because he was legally entitled to receive remuneration for the services he provided during the delivery. In an opinion written by former Chief Justice Marilyn Aboussie, the 3rd Court said that McIntyre could claim an exemption from liability only if he proved conclusively that “he would not customarily receive remuneration for the services he provided and he would not legally be entitled to remuneration.” Justice Lee Yeakel joined Aboussie in the opinion. However, 3rd Court Justice Jan Patterson said in a dissenting opinion, “By the language of the statute, the Legislature clearly intended to encourage physicians and other health-care providers — in a hospital — to render care. If entitlement to remuneration under some unarticulated legal theory or multi-pronged requirement were the test, no doctor would ever render emergency care.” Tom Mayo, a Southern Methodist University Dedman School of Law associate professor who teaches courses in health care law, says the language in Texas’ Good Samaritan statute is unique. The drafting of � 74.001(d) was “pretty artless” and could lead to the conclusion reached by the 3rd Court’s majority, Mayo says. “The plain meaning is just not that plain,” he adds. With the passage of H.B. 4, the Legislature amended the Good Samaritan statute, eliminating the language at issue in McIntyre. Under TCPRC � 74.151(b)(1), whether a doctor is “legally entitled” to receive remuneration for emergency care provided is not a consideration in determining a remuneration question, Ewbank says. Also in McIntyre, the state Supreme Court held that the trial court did not abuse its discretion when it struck the affidavit filed by the plaintiff’s expert witness to controvert McIntyre’s testimony that neither he nor any doctor in Travis County would have charged a fee to Ramirez or anyone else under the circumstances of this case. McCown struck an affidavit by Dr. Stuart Edelberg, a board-certified obstetrician from Maryland, who stated that McIntyre was entitled to bill and receive a fee for the delivery of Ramirez’s baby. The state Supreme Court said in its opinion that Edelberg’s statement is a legal conclusion with no supporting facts or rationale. Wrote Wainwright, “A conclusionary statement of an expert witness is insufficient to create a question of fact to defeat summary judgment.”

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