October 20, 2014

As public health authorities moved to calm fears about the risk from Ebola, lawyers last week urged health care and other clients to take precautions against spreading the potentially fatal disease — and to mitigate attendant lawsuits.

Since the Oct. 8 death in Dallas of Liberian national Thomas Eric Duncan, questions have surfaced about whether the hospital and the doctors and nurses who treated him followed adequate protocols. Two nurses who treated Duncan have been diagnosed with Ebola.

The Centers for Disease Control and Prevention has attempted to assure the public that the disease is under control, but its handling of the situation was assailed during a congressional hearing on Oct. 16. Meanwhile, hospitals and medical providers crafted contingency plans in case the virus arrives at their doorstep.

“This is such a scary phenomenon,” said Richard Donohue, a partner at Chicago’s Donohue Brown Mathewson & Smyth who represents hospitals and physicians in medical malpractice and other tort actions. “Most of the major medical centers are following the same track in trying to establish protocols and special health care teams to deal with this issue if and when it arises. But because of the gravity of the disease, there’s quite a bit of concern.”

Hospitals and doctors who fail to diagnose a patient or lack proper procedures against Ebola could face litigation — although plaintiffs attorneys might have to be creative, according to lawyers who specialize in tort claims. The threat of lawsuits extends beyond the medical world to include airlines, mortuaries and other businesses whose employees might be exposed to the virus.

Frontier Airlines found itself in the crosshairs, insisting that Amber Joy Vinson, who with fellow nurse Nina Pham contracted Ebola, was asymptomatic when she boarded one of its planes on Oct. 13 in Cleveland — about 24 hours before her diagnosis. That plane has been decontaminated several times, but CDC officials reached out to other passengers. Schools in Texas and Ohio closed after the nurse was diagnosed because students or employees were on the same aircraft, according to news reports.


On Oct. 14, National Nurses United, the nation’s largest nurses union, accused Texas Health Presbyterian Hospital, where Duncan was treated, of having inconsistent or nonexistent Ebola protocols. Dr. Daniel Varga, chief clinical officer for Texas Health Resources, the system that oversees the hospital, acknowledged during the congressional hearing that “unfortunately, in our initial treatment of Mr. Duncan, despite our best intentions and a highly skilled medical team we made mistakes.”

Polsinelli shareholder David Cade in Washington said he stresses to his health care clients that having systems in place to handle Ebola is key to mitigating legal threats. Hospitals should have strategies and ensure their employees are trained in implementing them, he said.

Cade, a former acting general counsel for the U.S. Department of Health and Human Services, was making sure his clients follow CDC Ebola guidance, have protocols ready to protect potential sufferers’s privacy and ensure they properly treat these individuals and keep their employees and the public safe.

Jane Jordan, deputy general counsel and chief counsel for health affairs at Emory University in Atlanta, on Oct. 14 vouched for the benefits of preparedness. On Oct. 15, Vinson was transferred to Emory’s hospital. During a panel discussion, Jordan said the hospital has a special unit for treating serious communicable diseases and an office devoted to planning for emergencies. “It’s that level of preparedness that I think really helped Emory in reacting to this event,” she said.

Shannon Salimone, a Holland & Knight partner in Tallahassee, was advising a “large health care provider” in Florida about whether it should ask about recent international travel on its patient intake form. “I definitely think asking questions is a prudent thing to do,” said Salimone, regulatory and litigation leader of her firm’s health care and life sciences team.

Failing to ask a patient about foreign travel is a red flag for lawyers who bring medical malpractice cases, said Judith Livingston, a partner at New York’s Kramer, Dillof, Livingston & Moore who specializes in malpractice and personal injury cases against hospitals and doctors. “You have to protect not only the patient and all the workers coming in contact with that patient, but all the subsequent patients who came into contact with those workers,” she said. Lawsuits on behalf of patients or nurses would face difficulties. Hospital employees, such as nurses, would be covered under workers’ ­compensation. And although Duncan’s family has threatened to sue, bringing a medical malpractice case is difficult, especially in Texas, which limits noneconomic damages to $250,000.

Perhaps more at risk are companies in other industries. They wouldn’t be shielded by medical malpractice caps, although plaintiffs lawyers would need to be creative about who they sue and how, said Robert Eglet of Eglet Law Group in Las Vegas, who obtained verdicts of more than $500 million each against a Nevada health insurance company and a pharmaceutical manufacturer for their roles in a 2008 hepatitis C outbreak at a medical clinic.

A passenger who contracted Ebola might have a case against an airline that allowed another passenger exhibiting symptoms of the disease to board a plane, he said. “They were negligent in allowing the passenger to get on the plane in close quarters and infect other people, particularly if the plane was coming from West Africa,” he said.

On Oct. 15, CDC director Dr. Thomas R. Frieden said Vinson should not have traveled on a commercial airliner, although the nurse maintained she’d been cleared by a CDC official to fly.


Airlines aren’t the only businesses facing legal risks. In issuing guidelines on handling and disposing of materials potentially contaminated with Ebola, the U.S. Department of Labor’s Occupational Safety & Health Administration specifically addressed workers in mortuary, airline and travel services.

Companies must take seriously any employee concerns about a lack of protective gear or other safety measures, said Michael Eckard, a shareholder in the Charleston, S.C., office of Ogletree, Deakins, Nash, Smoak & Stewart who represents employers in health care and other industries. Their actions could fall under the National Labor Relations Act.

Most employers would do well to educate employees about the disease, Eckard said. The Americans With Disabilities Act says employers cannot require asymptomatic employees who may have been exposed to Ebola to go to the doctor, for example, and can’t ask too many medical questions of their employees or discriminate based on a perceived health problem. But they can give employees the CDC’s guidance, which suggests taking one’s temperature twice a day for 21 days. If an employee begins to exhibit symptoms, employers can ask that they stay home.

Frontier Airlines didn’t wait that long. On Oct. 15, the airline put six crew members on paid leave for 21 days “out of an abundance of caution,” chief executive officer David Siegel wrote in a letter to employees. Meanwhile, Briana Aguirre, an emergency room nurse who treated Pham, has taken time off from work and retained Robert Kelley of the Kelley/Uustal firm in Fort Lauderdale. “Right now, we are just monitoring the situation and making sure that her interests are protected,” Kelley said.

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