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
