How likely is a lawsuit against the hospital that treated first American Ebola victim?

The news is awash with stories about Ebola in the wake of the death of the first Ebola patient in the United States.

It was widely reported that the patient, Thomas Eric Duncan, first went to the emergency department of Texas Health Presbyterian Hospital on September 25^th with symptoms consistent with Ebola. Despite telling medical staff that he has just returned from Liberia, a known hot-spot for the disease, Duncan was sent home from the hospital with antibiotics.

Duncan returned three days later, when his symptoms became more serious, and he became the first person to be diagnosed with Ebola in the United States. Duncan succumbed to the illness and died at the hospital.

This has raised the question as to whether the hospital might face a lawsuit from Duncan’s family for failure to recognize that he had Ebola the first time he came to the emergency department. The answer, according to most experts, is that it is highly unlikely that a lawsuit against the hospital would succeed.

Texas has one of the highest standards required for a finding of negligence; Texas law states that a person administering emergency care in good faith is “not liable in civil damages for an act performed during the emergency unless the act is willfully or wantonly negligent.” Because of this wording, it is extremely difficult to prove negligence by emergency department clinicians.

Another issue which would make a case of this sort difficult to prove is the issue of causation. Duncan’s family would have to be able to show that the three-day delay caused his death. However, due to the deadly nature of the virus, it would be hard to prove that an earlier diagnosis would have resulted in a better outcome for Duncan. And finally, Texas’ cap on non-economic damages of $250,000 makes it unlikely that an attorney would even take the case.

Since Duncan’s death, two nurses who treated him have been diagnosed with Ebola. It remains to be seen what the legal ramifications of this might be.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.