Project Summary: This story is part of KXAN’s “Preventing Disaster” investigation, which initially published on May 15, 2024. The project follows a fatal car crash into an Austin hospital’s emergency room earlier that year. Our team took a broader look at safety concerns with that cra sh and hundreds of others across the nation – including whether medical sites had security barriers – known as bollards – at their entrances. Experts say those could stop crashes from happening. AUSTIN (KXAN) -- St. David's North Austin Medical Center is using an "absurd" legal defense to try to blunt a $1 million lawsuit filed by a family of four who were injured when a car drove into the ER lobby, according to an attorney with more than 40 years of experience who reviewed the public case records. Next month marks one year since the Bernard family filed the lawsuit, accusing St. David's HealthCare of gross negligence for not having safety bollards at the time. Experts say that security feature could have stopped the crash that killed the driver, who had a blood-alcohol level between three and four times the legal limit to drive at the time, toxicology results showed. EXPLORE "Preventing Disaster:" KXAN investigation uncovers 300+ crashes at medical buildings Fighting for accountability Beyond the broken bones, surgeries and rehab, are the scars that are harder to heal. "I wasn't in our house for almost a month after the accident," Nadia recalled, talking about her road to recovery last year. Levi and Nadia Bernard with their toddlers, Sunny and Rio, left, before being run over by a car in the lobby of St. David's North Austin Medical Center. (Source: Austin Police Department) On February 13, 2024, Nadia, her husband Levi, and their two toddlers were run over by a car while looking at a fish tank inside the hospital's lobby. Their youngest went through the sedan's windshield. "He was saying, 'Boom, owie. Boom, owie,'" Nadia said her toddler would shout after the crash when he saw other cars. "Which is crazy. He's not even two." Medical bills and the lingering emotional toll are the center of the family's lawsuit against St. David's HealthCare. In court filings, the hospital system makes no mention of why it had no safety bollards outside its ER. However, it does argue that because Nadia was a patient that day getting a CT scan, her injuries should be treated as "health care liability claims" -- despite being in the lobby at the time, not an exam room, and having already been seen by doctors. All four members of the Bernard family were hurt when a car crashed into a hospital ER in February (Courtesy Bernard Family, Diane Warmoth) St. David's HealthCare said it does not comment on pending litigation. A 'health care liability' defense Attorney Kay Van Wey at the Texas Capitol (KXAN Photo/Matt Grant) Dallas medical malpractice attorney Kay Van Wey has worked with KXAN Investigates before. In 2022, Van Wey, who represented victims of the notorious Texas neurosurgeon dubbed "Dr. Death," helped push for a law change to reform the Texas Medical Board and make physician discipline records more transparent. It was a direct response to our investigations exposing doctors coming to Texas to escape their problematic pasts. The law takes full effect this year. Van Wey has no connection to the Bernard's lawsuit but agreed to review the public court records for us. "They're doing what lawyers do," she told KXAN during a recent visit to the Capitol to meet with lawmakers. "They're trying to work the loophole. They're representing their clients." Nadia at St. David's Round Rock Medical Center (Courtesy Bernard family) Van Wey said treating Nadia's pain and suffering claim as medical malpractice, because she was a patient that day, is a "complete perversion" of the law. She believes it is an "extreme example of how much power and privilege hospitals" in Texas have and "how unfair" the system can be to patients. "I think the average person can look at a situation like this and say: What does a car crashing through the ER door have anything to do with medical malpractice?" Van Wey said. The legal strategy goes back to 2003. More than 20 years ago, state lawmakers passed the Texas Medical Liability Act to curb what Texans for Lawsuit Reform called "lottery-style windfalls for a few plaintiffs or their lawyers." Nadia at St. David's Round Rock Medical Center (Courtesy Bernard family) The law capped pain and suffering in medical liability cases at $250,000. Injured family files lawsuit in fatal Austin hospital crash "I think the hospital is seizing upon the opportunity to limit its liability," said Van Wey, referring to St. David's current defense strategy. Under the law, which St. David's attorneys cite in its defense, medical liability claims relate to the treatment or lack of treatment a patient received, or anything that goes against the "accepted standards of care, or health care, or safety... directly related to health care." The latter component of the law -- referring to "safety" -- is what St. David's attorneys believe should cover the allegation it failed in its duty to protect Nadia, its patient, with bollards. "If, as Ms. Bernard contents, NAMC has an enhanced duty to protect patients on its premises by virtue of the fact that it is a hospital and health care provider, then the alleged failure to protect the safety of its patients can be nothing but a health care liability claim." Attorneys for St. David's HealthCare That is a stretch, Van Wey said, since bollards are not related to health care. "There are safety issues that are related to health care [like the] maintenance of an MRI machine that malfunctioned, or something like that," Van Wey said. "But, the safety issue must be related to health care." St. David's HealthCare wants the "safety" portion of the Texas Medical Liability Act to apply to the Feb. 13, 2024 car crash. (Courtesy Travis County court records) St. David’s North Austin Medical Center added a dozen bollards outside its ER after the fatal crash on Feb. 13. (Courtesy Howry, Breen & Herman) "In this case," she added, "one would have to look long and hard to find evidence that a car running through the doors of an ER has anything to do with the provision of health care." St. David's attorneys concede their motion to treat Nadia's claims as medical liability would only apply to her. The rest of her family's claims would be treated as personal injury and not subject to caps on non-economic damages. If a judge agrees, that would limit the amount of money the hospital system might have to pay out for Nadia's pain and suffering compared to that of her husband and their two kids. The notion that hospital patients can have fewer rights than visitors, in terms of bringing a claim, should concern all Texans, Van Wey said. "Any reasonable human being would step back from this and say: This is a legal absurdity," she said. "The law wasn't intended for this purpose." The Austin-based attorney for the Bernard family, Sean Breen, is taking depositions from hospital officials in an attempt to find out why St. David's had bollards at some of its Central Texas locations but not others, like NAMC. Bollards were installed after the fact, but the hospital system will not say if they are crash-rated to stop another incident. KXAN's ongoing investigation sparked a new Austin ordinance requiring crash-rated security bollards at new hospitals, urgent care clinics and stand-alone ERs along with existing ones that expand. It also directly led to Senate Bill 660, which aims to expand that safety step statewide. ...read more read less