October 16, 2014

o-EBOLA-VIRUS-facebookThe current worldwide Ebola outbreak is the largest ever recorded and also the first time Ebola-related deaths have occurred in America. According to the CDC, there is no specific treatment or vaccine for the deadly virus.

The Ebola hemorrhagic virus, simply called Ebola in news reports, is a disease that may cause extremely serious conditions, including:

  • Severe headaches
  • General weakness
  • Diarrhea
  • Vomiting
  • Fever
  • Abdominal pain
  • Red eyes
  • Bleeding and unexplained bruising; and
  • Death

The Ebola virus has a mortality rate above 50 percent among infected individuals. The Ebola virus is transmitted through contact with broken skin, mucous membranes, blood, bodily fluids, and contaminated needles and syringes.

Judging from news reports about the nurses who contracted Ebola in Texas, it appears the Dallas hospital may have failed to follow proper procedures to protect its employees and the public from the deadly disease. When Thomas Eric Duncan first appeared at the Texas Health Presbyterian Hospital on the night of Sept. 25, he told a nurse that he suffered from a headache and abdominal pain and that he was returning from Liberia, where Ebola is currently rampant. He was sent home with an antibiotic prescription. When his symptoms continued to worsen, he was admitted into the hospital three days later and subsequently became the first person to be diagnosed with Ebola in the United States. Ten days later, Duncan’s condition worsened and he died.

What other legal issues are raised by the Ebola outbreak?

Ebola victim Thomas Eric Duncan was treated at the Dallas-based Texas Health Presbyterian Hospital.

Ebola victim Thomas Eric Duncan was treated at the Dallas-based Texas Health Presbyterian Hospital.

In addition to diagnostic errors, there are a variety of other legal issues implicated by the Ebola outbreak. If Duncan infected non-hospital employees during his stay, these individuals may have a cause of action under common law tort principles. Although it varies from state to state, some cases – most notably Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 (1976) – have held that hospitals have a duty to protect third persons from foreseeable dangers that may be caused by a patient whom a healthcare provider knows has the potential to injure or kill other persons. Although this 1976 case has been distinguished and narrowed in many states, a non-employee individual who entered a healthcare facility to receive services and subsequently contracted Ebola may have a cause of action under the Tarasoff holding if the danger was known to the hospital prior to the individual entering the hospital.

There may also be a cause of action under premises liability, which holds that landowner who allows third parties to enter its premises for business or related purposes owe third parties a duty of reasonable care to protect them against non-obvious hazards. In the case of Ebola, the hospital understood that Duncan was infected by the virus, but persons who entered the Texas Health Presbyterian Hospital in Dallas to receive health services may not have been aware they were potentially at a serious risk of harm. If the hospital’s ventilation system or other facility were contaminated with the virus, the hospital may have a duty to cure the contamination or take reasonable steps to prevent the contamination from infecting third parties.

An employer owes a legal duty to prevent foreseeable injuries. Accordingly, a hospital whose employees have been infected by Ebola owes a duty not to send its employees out into public carrying a deadly and infectious disease. Individuals and families of deceased individuals who contracted the Ebola virus from a hospital employee may have a cause of action against the hospital that did not take reasonable steps to prevent its employees from infecting others.

Hospitals and healthcare facilities owe a duty to provide safe working environments under the Occupational Safety and Health Act (“OSHA”). OSHA also specifically requires that employers protect employees against recognized health and safety hazards. Where a hospital or healthcare facility determines its employees are reasonably likely to encounter the Ebola virus, OSHA regulations require that the employer develop a plan to protect its employees. News reports appear to indicate that the Dallas hospital that treated Duncan failed to implement an adequate safety plan, and failed to provide proper protective equipment or adequate training regarding Ebola to its employees.

Why are ‘failure to diagnose’ medical malpractice lawsuits filed?

Failure to diagnose a disease, misdiagnosis, and delayed diagnosis are common bases for medical malpractice lawsuits. These cases are normally filed when a doctor fails to identify and appropriately treat a medical condition. Healthcare providers may commit these diagnosis errors when an improper examination is performed on a patient, where there is a failure to recognize indications of a medical problem, where appropriate tests are not ordered, and where follow-up care is not provided. Currently, it is unknown whether Duncan was the victim of a healthcare provider’s diagnosis failure.

Other legal issues associated with Ebola include the disposal and handling of medical waste that may be contaminated with the virus. Medical waste, which can include gloves, clothing, and other items, may need to be incinerated after potentially coming in contact with Ebola. Many hospitals have incinerators on-site, but others may need to transport medical waste, which raises additional legal concerns.

Lawyers and legal scholars have indicated the Ebola outbreak may raise further issues, including:

  • Ebola patient privacy protections under HIPAA
  • Whether hospital patients are covered by the federal Emergency Medical Treatment and Active Labor Act, which requires some providers to stabilize patients who have an emergency medical condition before transferring them to another facility
  • Obtaining consent to treat Ebola patients with an experimental drug
  • A healthcare facility’s ability to require that patients undergo an Ebola test
  • The ability of hospitals to forcibly quarantine unwilling Ebola patients

In light of the Ebola death in Dallas, Texas’ harsh tort reform law have also come under fire by critics who note that the laws have made it almost impossible for plaintiffs to sue Texas hospitals for medical errors committed while rendering emergency care in most circumstances. Section 74.151 of the Texas Civil Practice and Remedies Code was amended in 2003 to read, “A person who in good faith administers emergency care, including using an automated external defibrillator, is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent.” In other words, in order for a plaintiff to recover for damages caused by a medical error, the plaintiff needs to show that hospital employees acted with wilful or wanton negligence in causing the injury. This is an exceedingly high burden to meet and makes it extremely challenging for medical malpractice plaintiffs to prevail in Texas.