Ebola lawsuits? Liability concerns are not limited to hospitals

The National Law Journal (sub. req.) reports that there is potential for a broad net of liability to be cast in Ebola cases. Concerns about Ebola in the U.S. have increased since news broke that Liberian national Thomas Duncan was infected with the disease and was initially misdiagnosed and sent home by Texas Presbyterian Hospital in Dallas in September.  Duncan later returned to the hospital where he was treated by a team of doctors and nurses. He died there on October 8. Since then two nurses who treated Duncan have also come down with the virus. This caused heightened concern about the spread of the disease, as one of the nurses traveled by commercial airline when she had an elevated temperature.

The Wall Street Journal reports that lawsuits against the hospital itself by either Duncan's family or the nursing staff would face difficulties. Texas law provides medical malpractice caps at $250,000 for pain and suffering and punitive damages are rarely awarded in these cases. Before the case could even proceed, plaintiffs would have to demonstrate the merit of their claims with expert testimony that the bad care by the hospital caused the injuries. Additionally, while employees could file worker's compensation claims, they would have to show the hospital was grossly negligent in order to sue for damages.

The National Law Journal suggests that there is significant potential for liability among multiple sources in Ebola cases, however. Hospitals would be an obvious target for lawsuits from patients and employees were the disease to spread, with many states not having laws limiting malpractice to the same extent as Texas. Because of the nature of the disease, liability may also expand to other entities, such as airlines, mortuaries and other businesses with which Ebola patients have had contact. Both members of the public and workers in these industries may have claims against these entities if they were to become infected. For example, passengers who contracted Ebola might have a case against an airline who allowed an infected passenger to board, and workers might have a case if they did not have sufficient training or preparation to deal with passengers with the disease. Similarly, workers in mortuary services may have cases against their employers for failing to provide appropriate training or protective gear for dealing with the infected.

Attorneys interviewed for the National Law Journal piece stressed the importance of preparation, including having protocols in place to protect employees, patients and the general public as a means to create safer environments and limit liability. For example, if a hospital or medical practice failed to inquire about whether a patient had traveled to countries in West Africa, that lack of protocol might create public health problems and serve as a "red flag for lawyers who bring medical malpractice cases," says Judith Livingston, a partner at New York's Kramer, Dillof, Livingston & Moore. According to the article, educating employees about the disease and providing CDC guidance may be important steps in promoting public safety and reducing potential liability.