Local Attorneys Gearing Up for Ebola Lawsuits
By Emily Mathis
Originally published by the Dallas Observer blog, “Unfair Park,” on October 17, 2014
The rhetoric from Texas Health Presbyterian Hospital nurses in the last several days has been vehement. Nurses are anonymously alleging that the hospital did not take proper steps to prevent contamination and infection, which ultimately led to nurses Amber Vinson and Nina Pham contracting Ebola from patient Thomas Eric Duncan. “In the end, the nurses strongly feel unsupported, unprepared, deserted and lied to in preparing for this,” said National Nurses United spokesperson Deborah Burger in a press conference on Wednesday.
And Texas Health Resources is scrambling to counteract the claims. “National Nurses United recently made allegations regarding the protocols and equipment in place during Thomas Eric Duncan’s treatment at Texas Health Presbyterian Hospital Dallas. The assertions do not reflect actual facts learned from the medical record and interactions with clinical caregivers,” said spokesperson Candace White in an e-mail statement. “Our hospital followed the Centers for Disease Control (CDC) guidelines and sought additional guidance and clarity.”
Still, chances are good that when the outbreak has subsided, Presbyterian’s owner, Texas Health Resources, along with the CDC and any other group involved in treating the virus will be facing several lawsuits. Charla Aldous, a lead attorney with Aldous Law Firm in Dallas, said she could not give any details, but confirmed that someone involved in the Ebola outbreak has reached out to her about a possible suit. “I have been contacted, but cannot disclose the names,” she says. “I have not yet been formally retained.”
But it’s clear the lawyers at Aldous are gearing up for a fight. Brent Walker, another attorney at the firm, outlined the lengthy legal avenue that — hypothetically, of course — an attorney could take if either Duncan’s contacts or employees at Presbyterian decided to take sue.
The first, and stronger, legal claims would come from Duncan’s family or other members of the general public who might have been exposed. Walker writes in his email memo:
It appears from the publicly available information that Mr. Duncan was inappropriately discharged from Presbyterian Hospital (“Presby”) when he initially presented to the emergency room, despite showing signs of symptoms consistent with Ebola and in light of his disclosure that he was recently in Liberia.Given that the CDC had warned Presby and other hospitals in the weeks and months before Mr. Duncan’s arrival about the need to develop appropriate policies and procedures to treat patients exposed to Ebola, Presby was aware and apparently had taken steps to establish protocols. As such, the nurses and doctors should have been aware of and instituted a protocol to treat Mr. Duncan. Despite that, he was discharge and exposed his family and other members of the general public to this highly contagious disease while being symptomatic.
Mr. Duncan’s family may seek to bring a wrongful death lawsuit on behalf of Mr. Duncan, in which they can seek to hold Presby accountable for his death and their losses of their family member. Additionally, if the family members become symptomatic or other members of the public develop it as a result of the exposure after the initial visit, they may have a direct negligence claim against Presby. They must contract it: Texas law does not allow claims for “fear of exposure.” You have to actually get it.
From there, Duncan’s family would have to overcome various hurdles in Texas’ sweeping tort reform laws of 2003, which set a high bar for proving negligence in emergency rooms and caps the size of potential awards.
“At the end of the day, the strongest case is probably against the hospital for the conduct of the nurses. Either way, Mr. Duncan and other patients who contract the diseases will need to show that the hospital was grossly negligent in discharging Duncan and taking away his chance of survival and exposing other people who would not otherwise been exposed to a similar fate,” says Walker.
In addition, hospital employees who contract the virus — so far, just Vinson and Pham — could have a case for a dangerous workplace claim. Walker says potentially exposed employees could also look into a suit under the Medical Liability Act. Again, from Walker’s email:
Given that Presby was made aware by the CDC of the need of the policies for Ebola containment, Presby should have appropriate policies in place to protect the patients, general public and their own employees. Recently, the news broke that a group of nurses believe they were inadequately trained or warned, that they were not provided adequate equipment, and that the policies were not in place to provide clear guidance. These are all legitimate claims to be made for inadequate workplace.Again, to have a viable claim they need to actually contract the disease, which sadly at least 2 have done. Those two individuals should never have put in a position without appropriate training and equipment. They have claims. The others who are merely exposed but do not contract the disease probably do not have viable claims. The law does not recognize “fear of getting a disease” as a viable claim.
Read the original story, as published by the Dallas Observer blog “Unfair Park,” here.