Professor Nora Engstrom Freeman and Professor Michelle Mello weigh in on whether there will be any potential legal action connected with the death of an Ebola patient in Texas. 

There is widespread speculation in the news media that the family of Thomas Eric Duncan could file a lawsuit against the hospital and the doctors who treated him in the emergency room in Dallas. But proving the case is not as easy as one may suspect.

Duncan showed up at the emergency room the first time suffering from a fever, and though he told a nurse he had been in West Africa — the region where there are the most cases of the deadly virus — the information apparently did not make its way to the doctor treating him. Duncan was sent home and told to take an antibiotic. A few days later he returned to the hospital, and this week he died there.

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Stanford University law professor Nora Freeman Engstrom points out in an interview with InsideCounsel that Texas is “really at the forefront of tort reform, and emergency room physicians and hospitals are uniquely protected.”

“Medical malpractice cases are hard to bring anywhere, even without the higher standards used in Texas,” Engstrom added.

Here, it seems clear that the hospital “dropped the ball,” she said. “Is that ball dropping enough to create liability — it’s unclear,” Engstrom adds.

In 2003, the state enacted a new standard in torts. Under that law, to assert a claim on the provision of emergency medical care, the claimant has to show a “willful and wanton negligence.” That is a higher level of culpability than the garden variety negligence seen in many other states, Engstrom said. Generally, “willful and wanton” would suggest an extra degree of negligence is needed to prove the case.

Engstrom further explained that if a wrongful death claim were made, the plaintiff would have to show the patient would have not died if the diagnosis was not botched. “Ebola is a deadly virus,” she points out. That could be a real legal problem for the plaintiff’s case. The plaintiff would have to prove that, if the earlier diagnosis had been made properly, that timely diagnosis would have prevented the patient’s death.

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For instance, Michelle Mello, who also teaches at Stanford law school, noted in an interview that there were a “number of communications breakdowns” related to Duncan, both when the hospital staff were communicating with each other and with the outside public.

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Based on the Dallas experience, emergency rooms may want to consider putting risk bands on patients with possible symptoms of Ebola or even put an unobtrusive sign in front of a door where a patient is located indicating “this is a possible case,” Mello said.

Also, when it came to the hospital’s external communications, through statements to the public and press releases, there was “a pitiful series of missteps and retractions,” Mello said. One statement from the hospital even questioned Duncan’s honesty.

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