Tort Law

Could Dallas hospital be liable for initial failure to admit Ebola patient? Tort reform a barrier

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Dallas Ebola patient Thomas Eric Duncan was sent home with antibiotics when he first visited the emergency room on Sept. 25. Could the hospital face liability in a suit by Duncan–or by anyone he infected before hospitalized three days later?

Texas Gov. Rick Perry said on Monday that mistakes had been made in the Ebola diagnosis, Reuters reports. His comments follow Texas Health Presbyterian Hospital’s admission on Friday that, contrary to earlier reports, Duncan did disclose to a nurse on Sept. 25 that he had been in Liberia, where there is an outbreak of the disease.

But Duncan would face difficult hurdles if he were to sue the hospital for alleged medical malpractice, Reuters says. Legal experts and plaintiffs lawyers tell the wire service that Texas is one of the most difficult states for medical malpractice claims because of tort reform.

Texas suits based on emergency-room errors require proof that medical staffers acted in a way that was “willfully and wantonly negligent,” the Reuters story says. State law also caps noneconomic damages at $750,000. As a result, says University of Texas law professor Charles Silver, med-mal suits in Texas have “dried up to the point of disappearing.”

Suits would also be difficult for anyone who were to develop Ebola because of contact with Duncan after he was initially sent home from the hospital. Not only would those plaintiffs face the “willful and wanton” standard, they would also have to show the hospital owed them a legal duty as a result of failing to treat Duncan, experts concluded.

On Tuesday, Duncan was in serious condition and receiving an experimental drug, according to USA Today.

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