I've been waiting for the excellent Texas Observer to report on the Ebola issue, and now here it is: Strict Texas Law Makes Ebola Lawsuits Unlikely. Excerpt:
This story was produced in partnership with the Guardian, where a version of this story also appears.
One of the unexpected lessons from the Ebola cases in Dallas may well be how thoroughly Texas protects hospitals—and their insurance companies—from answering for critical lapses in care.
When Thomas Eric Duncan entered the Texas Health Presbyterian Hospital’s emergency room on Sept. 25 with a fever and complaining of stomach pain, there’s a chance that proper treatment might have saved him from the Ebola virus that would kill him 13 days later. Instead, the Liberian man was sent home with only painkillers and antibiotics.
Duncan’s family and his fiancée are haunted by the question of whether Duncan might have survived had he been properly diagnosed. Executives at Texas Health Presbyterian Hospital have admitted to mistakes and apologized to Duncan’s family.
But should Duncan’s family members seek more than an apology, and ask the courts to hold the hospital accountable for its missteps, they won’t find much recourse under Texas law. Neither will the nurses who contracted Ebola while treating Duncan, apparently for a time without sufficient safety gear, nor will anyone who might have contracted the virus from them later.
Thanks to a number of Texas court decisions and laws—including a sweeping 2003 Republican-led tort reform effort—lawyers say it’s unlikely that Presbyterian faces serious legal risk from the Ebola cases or others like them. Even if the hospital were found liable in court, the damages would be limited. Without the threat of expensive litigation, critics of tort reform argue, hospitals face little consequence for turning away sick, uninsured patients, even ones with Ebola.
The Dallas Morning News has reported that Duncan’s family members are considering a lawsuit against the hospital. The first challenge they would face is probably the greatest: proving that Duncan ever had a better-than-even chance of survival once he’d contracted the virus. With Ebola’s global mortality rate estimated recently at 70 percent, doctors and hospitals are probably safe from ever answering for even the most blatant malpractice against an Ebola patient.
That’s not necessarily true in states where courts have adopted what’s known as a “loss of chance” doctrine allowing lawsuits even when the chance of survival is under 50 percent. But Texas’ courts have consistently shut the door to that possibility, ruling that if a patient was likely to die, then the hospital can’t be held liable for malpractice.
If there were a way past that barrier, Duncan’s family would face the same obstacles any other patient has since Texas’ 2003 tort reform law took effect. The law requires emergency room patients to prove not just negligence on the part of hospital staff but “willful and wanton” negligence. That “emergency room standard” is one of a few changes introduced in the tort reform law that raised the standard for lawsuits against hospitals.
Another section of the law, related to hospitals’ responsibility for credentialing dangerous doctors, has protected another Dallas-area hospital from litigation over a dangerous Dallas neurosurgeon who killed two patients and paralyzed four others in a series of botched surgeries.
Paula Sweeney, a Dallas attorney with the law firm Slack and Davis and a former president of the Texas Trial Lawyers Association, says Duncan’s family will have a difficult time proving wanton negligence. Though Presbyterian sent Duncan home after his first trip to the emergency room, the hospital staff did perform a CT scan and offer some treatment for his fever.
“Yes, they screwed up; they turned away a guy with a fever with antibiotics,” Sweeney says. “But they did do something.”
That minimum level of treatment is all that Texas courts would require, she says, and Duncan couldn’t have paid for much more treatment, anyway. In that sense at least, his case is hardly unique. “I think the treatment was more in line with somebody that doesn’t have insurance,” Sweeney says.
Nevertheless, the cases of Nina Pham and Amber Vinson will likely occupy the Texas courts well into the next decade, if their families and colleagues choose to make an issue out of it.