Ebola victim's family unlikely to win lawsuit against Dallas hospital
Skip to main content
MDHC_Logotype_white
Subscribe
  • My Account
  • Login
  • Subscribe
  • News
    • This Week's News
    • COVID-19
    • Providers
    • Insurance
    • Government
    • Finance
    • Technology
    • Safety & Quality
    • People
    • Regional News
    • Digital Edition
    • Plunging demand for COVID-19 tests may leave U.S. exposed
      J&J's 1-dose shot cleared, giving U.S. third COVID-19 vaccine
      46.7% of surveyed adults reported delaying dental treatment due to COVID-19. 74.7% delayed a routine checkup.
      Data Points: Dental visits during the pandemic
      A provider wearing PPE looking at a wall with patient notes.
      Rethinking quality and safety in the age of COVID
    • Plunging demand for COVID-19 tests may leave U.S. exposed
      J&J's 1-dose shot cleared, giving U.S. third COVID-19 vaccine
      46.7% of surveyed adults reported delaying dental treatment due to COVID-19. 74.7% delayed a routine checkup.
      Data Points: Dental visits during the pandemic
      Mikelle Moore
      The promising future of rural healthcare, even amid the COVID-19 pandemic
    • Dr. Imran Andrabi
      Q&A: ThedaCare CEO says lessons from COVID-19 will inform new approaches to population health management
      The Check Up: Dr. Imran Andrabi
      The Check Up: Dr. Imran Andrabi of ThedaCare
      Hospitals confront water shortages in winter storm aftermath
      beaumont-hospital-royal-oak_i_i_i.jpg
      Beaumont says nearly 2,000 second-shot vaccinations canceled due to vaccine shortage
    • CMS: Group health plans must cover COVID-19 diagnostic testing
      High MLRs inspire insurers to focus on quality improvements
      Blue Cross and Blue Shield of Oklahoma, OU Health Physicians mired in contract dispute
      Beyond the Byline: Insurers are betting on virtual-first plans as COVID-19 shifts care pathways
    • CMS: Group health plans must cover COVID-19 diagnostic testing
      Another Pennsylvania health network vaccinates employee kin
      Why AstraZeneca and J&J's vaccines, in use elsewhere, are still on hold in America
      Lawmakers probe if Cuomo's policy fueled nursing home deaths
    • UPMC's patient volumes stabilize, boosting 2020 profits
      Genomics firms taking advantage of SPACs trend to go public faster
      COVID-19 could dent hospital revenue by at least $53 billion in 2021, AHA says
      deloitte GDP image chart graph going up
      Sponsored Content Provided By Deloitte
      Breaking the cost curve
    • Teladoc reports $383.3M in fourth-quarter revenue, up 145%
      man and woman looking at ipad wearing face masks stock image
      Sponsored Content Provided By Surescripts
      Improvements to benefits data can enhance ePrescribing and the patient experience
      Oscar Health's $1B IPO sets the stage for more health tech exits in 2021
      A map of the U.S. with images of the coronavirus.
      The digital divide becomes a new social determinant of health
    • A provider wearing PPE looking at a wall with patient notes.
      Rethinking quality and safety in the age of COVID
      exam room-main_i.jpg
      Nurse practitioner with not-for-profit clinic in Detroit church expands to COVID-19 vaccines
      Fighting COVID on three fronts
      46.7% of surveyed adults reported delaying dental treatment due to COVID-19. 74.7% delayed a routine checkup.
      Data Points: Dental visits during the pandemic
    • Alicia Wilson
      Q&A: Emerging leader Alicia Wilson on staying close to home
      Michael Jordan, Novant team up to address health equity
      Former Ascension CEO, the first to lead the health system, passes away
      Biden's pick to head CMS would be first Black woman to hold post
    • Midwest
    • Northeast
    • South
    • West
  • Insights
    • ACA 10 Years After
    • Best Practices
    • Special Reports
    • Innovations
    • The Affordable Care Act after 10 years
    • Dr. John Fischer
      Patient-reported outcomes tool for hernia surgery helps physicians improve care
      New care model helps primary-care practices treat obesity
      doctor with patient
      COVID-19 treatment protocol developed in the field helps patients recover
      Rachel Wyatt
      Project to curb pressure injuries in hospitals shows promise
    • What's next for on-demand telehealth companies?
      A map of the U.S. with images of the coronavirus.
      The digital divide becomes a new social determinant of health
      A CalOptima PACE vaccination clinic.
      Will COVID-19 be the catalyst for creating a more sustainable healthcare system?
      Ascension’s St. Mary’s Hospital Surgery Center at Towne Centre and Allegheny Health Network’s Bethel Park surgery center
      Hospitals see opportunity, risk in ambulatory surgery centers
    • Dr. Daniel Hall
      UPMC pilots machine learning, telehealth to inform patient transfers
      A woman being recorded using her inhaler on a smartphone.
      Digital check-ins, connected inhalers help control asthma
      A phone screen showing the question, "Mary we hope this information was helpful and we'd like to keep guiding you. Are you interested in knowing when it's your turn to receive the vaccine?"
      Chatbots, texting campaigns help manage influx of COVID vax questions
      A woman with a wearable sensor talking to her provider.
      Wearable sensors help diagnose heart rhythm problems in West Virginia
  • Transformation
    • Patients
    • Operations
    • Care Delivery
    • Payment
    • What's next for on-demand telehealth companies?
      Rising prescription copays drop adherence, spike mortality, research shows
      Dr. John Fischer
      Patient-reported outcomes tool for hernia surgery helps physicians improve care
      Highmark Health inks six-year cloud, tech deal with Google
    • Hospitals' Medicare billing practices suggest upcoding, OIG says
      California hospitals prepare ethical protocol to prioritize lifesaving care
      Amazon, JPMorgan Chase, Berkshire Hathaway disband Haven
      Digital pathways poised to reshape healthcare continuum in 2021
    • Dr. Daniel Hall
      UPMC pilots machine learning, telehealth to inform patient transfers
      A woman being recorded using her inhaler on a smartphone.
      Digital check-ins, connected inhalers help control asthma
      Humana partners with in-home provider for 24/7 care
      A phone screen showing the question, "Mary we hope this information was helpful and we'd like to keep guiding you. Are you interested in knowing when it's your turn to receive the vaccine?"
      Chatbots, texting campaigns help manage influx of COVID vax questions
    • Coordinated payment policies could speed transition to value, experts say
      CMMI's geographic direct contracting model needs an overhaul, experts say
      Hospitals fight UnitedHealthcare policies over lab test, specialty drug payments
      Cigna eliminates prior authorization for coronary CT scans
  • Data/Lists
    • Rankings/Lists
    • Interactive Databases
    • Data Points
    • Health Systems Financials
      Executive Compensation
      Physician Compensation
  • Op-Ed
    • Bold Moves
    • Breaking Bias
    • Commentaries
    • Letters
    • Vital Signs Blog
    • From the Editor
    • Dr. Alan Kaplan
      The risks, rewards of taking organizations 'where they haven’t gone before'
      Wellstar CEO calls adapting for the pandemic her bold move
      Howard P. Kern
      Recognizing the value of telehealth in its infancy
      Dr. Stephen Markovich
      A bold move helped take him from family doctor to OhioHealth CEO
    • Dr. Stephen Markovich
      Making sure we're aligned along the path to achieving inclusion
      Barry Ostrowsky
      Ending racism is a journey taken together; the starting point must be now
      Laura Lee Hall and Gary Puckrein
      Increased flu vaccination has never been more important for communities of color
      John Daniels Jr.
      Health equity: Making the journey from buzzword to reality
    • Mikelle Moore
      The promising future of rural healthcare, even amid the COVID-19 pandemic
      In-person visitation must be part of the national COVID-19 response
      We've lost so much to the pandemic, but we've also made gains that will endure
      Medical groups key to meeting president's vaccine pledge
    • Letters: Eliminating bias in healthcare needs to be ‘deliberate and organic’
      Letters: Maybe dropping out of ACOs is a good thing for patients
      Letters: White House and Congress share blame for lack of national COVID strategy
      Letters: VA making strides to improve state veterans home inspections
    • Sponsored Content Provided By Optum
      How blockchain could ease frustration with the payment process
      Sponsored Content Provided By Optum
      Three steps to better data-sharing for payer and provider CIOs
      Sponsored Content Provided By Optum
      Reduce total cost of care: 6 reasons why providers and payers should tackle the challenge together
      Sponsored Content Provided By Optum
      Why CIOs went from back-office operators to mission-critical innovators
  • Awards
    • Award Programs
    • Nominate
    • Previous Award Programs
    • Other Award Programs
    • Best Places to Work in Healthcare Logo for Navigation
      Nominations Open - Best Places to Work in Healthcare
      Nominations Open - 50 Most Influential Clinical Executives
    • 100 Most Influential People
    • 50 Most Influential Clinical Executives
    • Best Places to Work in Healthcare
    • Health Care Hall of Fame
    • Healthcare Marketing Impact Awards
    • Top 25 Emerging Leaders
    • Top 25 Innovators
    • Minorities in Healthcare
      • - Luminaries
      • - Top 25 Minority Leaders
      • - Minorities to Watch
    • Women in Healthcare
      • - Luminaries
      • - Top 25 Women Leaders
      • - Women to Watch
    • Excellence in Nursing Awards
    • Design Awards
    • Top 25 COOs in Healthcare
    • 100 Top Hospitals
    • ACHE Awards
  • Events
    • Conferences
    • Galas
    • Webinars
    • COVID-19 Event Tracker
    • podium march webinar logo lockup
      Sponsored Content Provided By Podium
      Webinar: Critical Touchpoints for Every Patient’s Journey — How Technology Plays an Important Role
      scp health logo lockup march 2021
      Sponsored Content Provided By SCP Health
      Webinar: COVID’s call to action — Reset for success in 2021
    • Women Leaders in Healthcare Conference
    • Social Determinants of Health Symposium
    • Healthcare Transformation Summit
    • Leadership Symposium
    • Virtual Briefings
      • - Hospital of the Future
      • - Mental Health
      • - Patient Safety & Quality
      • - Strategic Marketing
      • - Virtual Health
      • - Workplace of the Future
    • Best Places to Work Awards Gala
    • Health Care Hall of Fame Gala
    • Top 25 Minority Leaders Gala
    • Top 25 Women Leaders Gala
  • Listen
    • Podcast - Next Up
    • Podcast - Beyond the Byline
    • Sponsored Podcast - Healthcare Insider
    • Video Series - The Check Up
    • Sponsored Video Series - One on One
    • Next Up Podcast: Educating patients on the COVID-19 vaccine with Tanya Andreadis
      Dr. Joseph Cacchione
      Next Up Podcast: Educating patients on the COVID-19 vaccine with Dr. Joseph Cacchione
      Dr. Karen DeSalvo
      Next Up Podcast: What to expect with telehealth and healthcare technology in the next four years
      Carter Dredge
      Next Up Podcast: Ready, set, innovate! Innovation and disruption in healthcare
    • Beyond the Byline: Insurers are betting on virtual-first plans as COVID-19 shifts care pathways
      Beyond the Byline: How residents' stories shape our coverage of the vaccination rollout in nursing homes
      Beyond the Byline: Regulators aim to boost value push with fraud and abuse law updates
      An older man wearing a mask receiving a vaccine.
      Beyond the Byline: Verifying information on the chaotic COVID-19 vaccine rollout
    • Outreach during COVID-19
      Leading intention promote diversity and inclusion
      Introducing Healthcare Insider Podcast
    • The Check Up: Dr. Imran Andrabi
      The Check Up: Dr. Imran Andrabi of ThedaCare
      The Check Up: Tanya Blackmon
      The Check Up: Tanya Blackmon of Novant Health
      The Check Up: Dr. Patrick Hwu
      The Check Up: Dr. Patrick Hwu of the Moffitt Cancer Center
      The Check Up: Suresh Gunasekaran
      The Check Up: Suresh Gunasekaran of the University of Iowa Hospitals & Clinics
    • ivana naeymi-rad one on one intelligent medical objects
      Video: Ivana Naeymi Rad of Intelligent Medical Objects
  • MORE +
    • Advertise
    • Media Kit
    • Newsletters
    • Jobs
    • People on the Move
    • Reprints & Licensing
MENU
Breadcrumb
  1. Home
  2. Providers
October 14, 2014 01:00 AM

Ebola victim's family unlikely to win lawsuit against Dallas hospital

Lisa Schencker
  • Tweet
  • Share
  • Share
  • Email
  • More
    Print

    The family of Ebola victim Thomas Eric Duncan would have a hard time winning a liability lawsuit against the hospital where he was treated and died, experts say. But that's only because of the state's restrictive tort reform law, and the scenario might be much different in other parts of the country.

    No lawsuits have been filed so far in the wake of Duncan's death, although his family members—with civil rights activist Jesse Jackson at their side—have publicly denounced the care he received at Texas Health Presbyterian Hospital Dallas.

    Duncan sought medical care at the Dallas hospital for a fever and abdominal pain after traveling from Liberia to Texas to visit his family. The hospital sent him home, but he returned two days later and was isolated because of suspected Ebola. He later died of the virus, and a nurse who was helping to care for him has since tested positive for it. Media reports have identified that nurse as 26-year-old Nina Pham.

    Related Content

    CDC chief urges redoubled vigilance on Ebola diagnosis, treatment

    Protocol breach in treating Dallas Ebola patient, CDC says

    What the Texas Ebola case teaches about crisis communications

    Ebola prompts hospitals to adjust precautions

    Under Texas law, it would be nearly impossible for Duncan's family to sue the hospital's emergency room physicians over his death, said Charles Silver, a law professor at the University of Texas who has studied tort reform. In 2003, the Texas Legislature enacted one of the country's toughest statutes, requiring anyone suing emergency room doctors to prove “willful and wanton” negligence by the physicians. It would also be difficult to prove the hospital's handling of Duncan's case led to his death because Ebola has such a high fatality rate, Silver noted.

    “Willful and wanton is if you're really reckless,” said Donna Thiel, a partner and healthcare lawyer at King & Spalding in Washington, D.C. “It's one thing to say you didn't act reasonably. It's another to say you acted willfully and wantonly.”

    But had the misdiagnosis happened in another state, Duncan's family might have had a better chance of proving malpractice.

    In Florida, for example, a plaintiff would have to prove doctors didn't provide “reasonable care based upon accepted standards of medical care” said Stuart Grossman, a senior partner at Grossman Roth in Florida. When it comes to emergency room cases in Florida, a plaintiff would have to prove the conduct was more than negligent but less than intentional, said Neal Roth, also with Grossman Roth.

    “I would take that case,” Grossman said if the situation had occurred in Florida. “If you made the diagnosis of Ebola, it's almost lay knowledge that you don't let these people out in the public, that you want to avoid contamination at all costs. … On the other hand, if you missed the diagnosis, you better have a damn good excuse.”

    He called the Texas standard for proving malpractice “basically a denial of patients' rights.”

    In Illinois, generally, a claim against a provider must be proved by expert medical testimony. A plaintiff has to show that the provider deviated from the standard of care upon which he was supposed to act and that the deviation caused or contributed to an injury, said Richard Huettel, a lawyer with Cassiday Schade in Chicago. All of those elements have to be proven more probably true than not.

    Silver said the bottom line is that unless there's a state “that's adopted a statute saying you can never sue an emergency room physician for anything,” Texas has one of the nation's most stringent emergency room laws if not the strictest.

    But malpractice cases are difficult to win anywhere, Silver said. About 65% to 70% are ultimately dropped by the plaintiffs.

    That's not to say, however, others who may have contracted Ebola from Duncan might not have a case against the hospital, even in Texas.

    If the nurse diagnosed with Ebola is covered by workers' compensation then she probably wouldn't be able to sue the hospital, Silver said. But if there is no workers' comp, the nurse could claim negligence. Workers compensation' is fairly standard for hospital employees, Thiel said.

    A hospital representative said Tuesday he could not answer questions about whether the nurse there is covered by workers' compensation.

    If she did sue, Silver said the hospital could try to lay the blame on the nurse, but according to the Texas statute she would have to have been intoxicated or intentionally harmed herself. Dr. Thomas Frieden, director of the Centers for Disease Control and Prevention, has said a “breach of protocol” allowed the nurse to become infected even though she wore protective gear. The CDC has not provided any explanation.

    Others exposed to the virus because of the hospital's initial misdiagnosis might also have an argument, Silver said. They could attempt to claim reckless endangerment on the hospital's part. Someone claiming reckless endangerment would have to prove the hospital knew of the risk created by the conduct or “knows facts that make the risk obvious,” Silver said.

    Hospital staff learned he had recently traveled from Africa before sending him home.

    A reckless endangerment claim could also include proving that “the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person's failure to adopt the precautions a demonstration of the person's indifference to the risk,” Silver said.

    “The theory is the Dallas hospital knew the patient was from Liberia, had a 103 degree fever, had abdominal pains, everyone in the world was focused on Ebola at that point, they should have checked him in, put him into isolation,” Silver said. “Given the risk that Ebola poses to other people's health, which is enormous, it's going to be hard to argue that the burden on the hospital was sufficiently great to offset that risk.”

    Thiel said it might be tough for community members exposed to the virus to sue the hospital because the hospital couldn't necessarily have anticipated those individuals would be put at risk by releasing Duncan. Duncan's family members, however, might have a case because the hospital could have reasonably anticipated they'd be placed in harm's way by sending Duncan home. On the other hand, Thiel said, they could have caught the virus before he went to the hospital for the first time.

    Follow Lisa Schencker on Twitter: @lschencker

    Letter
    to the
    Editor

    Send us a letter

    Have an opinion about this story? Click here to submit a Letter to the Editor, and we may publish it in print.

    Recommended for You
    Q&A: ThedaCare CEO says lessons from COVID-19 will inform new approaches to population health management
    Q&A: ThedaCare CEO says lessons from COVID-19 will inform new approaches to population health management
    The Check Up: Dr. Imran Andrabi of ThedaCare
    The Check Up: Dr. Imran Andrabi of ThedaCare
    Sponsored Content
    Get Free Newsletters

    Sign up for free enewsletters and alerts to receive breaking news and in-depth coverage of healthcare events and trends, as they happen, right to your inbox.

    Subscribe Today

    The weekly magazine, websites, research and databases provide a powerful and all-encompassing industry presence. We help you make informed business decisions and lead your organizations to success.

    Subscribe
    Connect with Us
    • LinkedIn
    • Twitter
    • Facebook
    • RSS
    • Instagram

    Stay Connected

    Join the conversation with Modern Healthcare through our social media pages

    MDHC_Logotype_white
    Contact Us

    (877) 812-1581

    Email us

     

    Resources
    • Contact Us
    • Advertise with Us
    • Ad Choices Ad Choices
    • Sitemap
    Editorial Dept
    • Submission Guidelines
    • Code of Ethics
    • Awards
    • About Us
    Legal
    • Terms and Conditions
    • Privacy Policy
    • Privacy Request
    Modern Healthcare
    Copyright © 1996-2021. Crain Communications, Inc. All Rights Reserved.
    • News
      • This Week's News
      • COVID-19
      • Providers
      • Insurance
      • Government
      • Finance
      • Technology
      • Safety & Quality
      • People
      • Regional News
        • Midwest
        • Northeast
        • South
        • West
      • Digital Edition
    • Insights
      • ACA 10 Years After
      • Best Practices
      • Special Reports
      • Innovations
    • Transformation
      • Patients
      • Operations
      • Care Delivery
      • Payment
    • Data/Lists
      • Rankings/Lists
      • Interactive Databases
      • Data Points
    • Op-Ed
      • Bold Moves
      • Breaking Bias
      • Commentaries
      • Letters
      • Vital Signs Blog
      • From the Editor
    • Awards
      • Award Programs
        • 100 Most Influential People
        • 50 Most Influential Clinical Executives
        • Best Places to Work in Healthcare
        • Health Care Hall of Fame
        • Healthcare Marketing Impact Awards
        • Top 25 Emerging Leaders
        • Top 25 Innovators
        • Minorities in Healthcare
          • - Luminaries
          • - Top 25 Minority Leaders
          • - Minorities to Watch
        • Women in Healthcare
          • - Luminaries
          • - Top 25 Women Leaders
          • - Women to Watch
      • Nominate
      • Previous Award Programs
        • Excellence in Nursing Awards
        • Design Awards
        • Top 25 COOs in Healthcare
      • Other Award Programs
        • 100 Top Hospitals
        • ACHE Awards
    • Events
      • Conferences
        • Women Leaders in Healthcare Conference
        • Social Determinants of Health Symposium
        • Healthcare Transformation Summit
        • Leadership Symposium
        • Virtual Briefings
          • - Hospital of the Future
          • - Mental Health
          • - Patient Safety & Quality
          • - Strategic Marketing
          • - Virtual Health
          • - Workplace of the Future
      • Galas
        • Best Places to Work Awards Gala
        • Health Care Hall of Fame Gala
        • Top 25 Minority Leaders Gala
        • Top 25 Women Leaders Gala
      • Webinars
      • COVID-19 Event Tracker
    • Listen
      • Podcast - Next Up
      • Podcast - Beyond the Byline
      • Sponsored Podcast - Healthcare Insider
      • Video Series - The Check Up
      • Sponsored Video Series - One on One
    • MORE +
      • Advertise
      • Media Kit
      • Newsletters
      • Jobs
      • People on the Move
      • Reprints & Licensing