BY ADAM WEISS – The current Ebola epidemic is the largest and deadliest on record. According to the World Health Organization (“WHO”), there have been 4,033 Ebola deaths out of 8,399 probable cases; these numbers may in fact be larger due to the under reporting of the disease. Moreover, according to Healthmap.org, the number of infected people is expected to rise 18,391 in the next four weeks. While West Africa has been the hardest hit by this latest epidemic, the disease has spread to a total of seven countries, including the United States.
On September 26th, Thomas Eric Duncan visited the emergency room of Texas Health Presbyterian Hospital after recently arriving in the U.S. from Liberia. He was sent home from the hospital with a 103 degree fever, and then returned to the hospital on September 28 where he was then diagnosed with Ebola. On October 8th, Duncan succumbed to the virus disease. Unfortunately, on October 12th, it was announced that the Dallas nurse that cared for Duncan had contracted Ebola.
With the above background, it is likely that the pressing question in the mind of every plaintiff’s lawyer out there is: “Can we sue the hospital?” There is a glaring reason for why one might place the blame on the hospital. Dr. Tom Frieden, director of the Centers for Disease Control and Prevention (CDC), indicated that although Duncan received the best care while in the hospital, his delayed treatment may have hurt his chances of survival. As Frieden stated, “. . . we encourage rapid and early diagnosis because the earlier someone is diagnosed, the more likely they’ll be to survive.” In addition, Duncan’s family have accused the hospital for failing to provide “appropriate care” and feel that the hospital’s treatment of Duncan is as a result of a “racial issue.” The blame for the delayed treatment has largely been placed upon the hospital, as the hospital turned Duncan away when he first came to the emergency room even though he mentioned that he had recently traveled from Liberia.
Despite the statements of Dr. Frieden and the family’s desire to pursue legal action “later on,” they will face an uphill legal battle. It is unlikely that the hospital will be legally liable for several reasons. According to Charles Silver, a law professor at the University of Texas at Austin, Texas is one of the most difficult states to bring a medical malpractice suit due to tort reform and other legal changes in Texas since 2003. Texas law states that a person administering emergency care in good faith “is not liable in civil damages for an act performed during the emergency unless the act is willfully or wantonly negligent.” This sets a very high bar for findings of negligence, and based upon the current evidence, would make any suit against the hospital seemingly valueless. Silver argues that as a result of the stringent Texas law, it has become almost impossible to prove negligence by E.R. physicians.
The other issue that lawyers will face is causation. Seth Chandler, a professor and director of the Health Law and Policy Institute at the University of Houston Law Center, argues that because of the deadly nature of Ebola, the fact that the hospital may have caused a few days delay may not have actually impacted whether or not Duncan would have survived. Continuing on this argument, Chandler remarked that “It’s not like we have a magic cure for Ebola,” implying that even if the disease had been recognized earlier, the hospital could not have done anything to save Duncan.
It is possible that there would be a higher potential for a successful legal suit had Duncan visited a hospital in a different state. The reason is because most states use a more lenient negligence standard for emergency-room malpractice. This is clear as a study conducted by Silver in 2012 showed that the claim rate for malpractice in Texas had dropped 60% since the tort reform began in 2003. Yet, even in Texas, there are already lawyers who argue that the hospital’s actions were willfully or wantonly negligent. For example, Les Weisbrod, a Dallas plaintiff’s attorney, believes that this standard is satisfied due to the hospital’s decision to release Duncan given all the circumstances of this case. Nevertheless, a lawsuit may still not be worth pursuing because Texas caps non-economic damages, such as pain and suffering, at $750,000.
Due to the fact that lawyers, such as Weisbrod, will have to foot the bill for the cost of the trial, the expense of pursuing this claim against the insurance company will likely be too burdensome to effectively pursue. Nevertheless, let’s all hope and pray that the potential legal claims related to Ebola in the U.S. remains at two, and that the suffering and death from this disease all around the world ends quickly.