Thomas Duncan returned from Liberia and presented to Texas Health Presbyterian Hospital with fever and abdominal pain. He was released with symptomatic treatment and returned 3 days later. Sadly, he died of Ebola.
The family of the first Ebola victim in the U.S. will “probably” take legal action against the Dallas hospital, where he died this week, a spokesman for his fiancee stated.
Putting aside procedural issues (such as whether a fiancé can sue for malpractice; or whether relatives who do live oustide the US sue for wrongful death), is such a suit likely to prevail?
To prevail in a malpractice suit, the plaintiff must demonstrate with a preponderance of evidence that (a) there was a doctor-patient relationship; (b) the provider failed to adhere to the standard of care; (c) which caused; (d) damages.
Let’s dispense with items (a) and (d) quickly. Mr. Duncan showed up at the ER. He was seen, examined, and treated. There was a doctor-patient relationship.
Next, he died. There were damages.
Standard of care is where it gets tricky. What is the standard of care for treating the first case of Ebola in the US? There were other patients, with known Ebola, who were transferred from West Africa to the US? But, Mr. Duncan was the first to walk in the door.
Standard of care would really be for that of a patient presenting with 103 fever and abdominal pain. Many such patients are admitted. Many such patients are sent home.
Even with the patient being from Liberia, odds were that a random patient stepping into Dallas ER with fever did not have Ebola.
Patients with run of the mill influenza and routinely seen in ER and sent home.
That’s not to justify that THIS patient was sent home. Because he did ultimately have Ebola. But, standard of care is based on what a reasonably prudent practitioner would have done in same or similar circumstances. And that analysis is made prospectively, not with the benefit of a retrospectoscope.
Next causation. What if this patient had been admitted? Ebola carries a high fatality rate whether or not the patient receives symptomatic treatment. Perhaps Mr. Duncan would have survived had he not become dehydrated and his kidneys shut down. Hard to say.
One criticism circulating is that Mr. Duncan did not receive an experimental therapy until “too late.” Experimental therapies are not considered the standard of care. That’s why they are called “experimental.” Regardless, the hospital was in daily contact with the CDC and undoubtedly was trying to do all it could to help its patient. Had the patient survived and walked out the door, the hospital would have been resuscitated as a heroic actor in this drama. The hospital was highly motivated to turn a negative spotlight into a positive one.
Others have said that Mr. Duncan was treated poorly because he was from Africa. I do not buy this argument. Why would the hospital withhold care, particularly when he was admitted? The experimental treatments are monoclonal antibodies from company that says it is out of stock; blood transfusions from survivors (apparently Mr. Chapman was not a match); and antiviral treatments not approved by FDA for this use. Mr. Chapman received the latter, but, in his case, either he received it too late; or it is not a helpful treatment in vivo.
So, can this potential plaintiff prevail? I do not think so.
Will this potential plaintiff sue? Almost certainly.
Why? The PR benefit of a plaintiff’s firm taking on such a case is too tantalizing to pass up. Further, I’m guessing the hospital will make some type of payment just to ease the pain it is experiencing in the media.
Going forward, the most challenging task might be figuring out how to type into the electronic medical record on a keyboard in an isolation room wearing a functional haz-mat suit.
Oh, they will prevail alright. By extorting hundreds of thousands, if not millions from their insurance company in the process of legal extortion (also called litigation in the US legal justice system), threat and accusation both publicly and privately. There is no hope here for the hospital or its physicians. We are all losers in the US legal system and the only victorious party, the plaintiffs attorneys, will find his/her way to hell faster than any other professional. Justice will most certainly not occur here on this earth. Not in my lifetime.
Only the cosmetic surgeons will get to hell faster than the plaintiffs’ attorneys. 🙂
The question may also revolve around the patient suffering unnecessary pain and suffering that admission on 1st visit could have helped alleviate or (remember only 50% die in Africa ) could have helped him survive.
Erik, you seem like a lawyer hater. I haven’t met one lawyer I did like, so I agree with you. And, Kathy. Cosmetic surgeons are usually artists and if they couldn’t help you, well, you are either ugly and beyond help or can’t be please no matter what a person does for you.
Because this is America, a lawsuit can be expected. I question that the hospital and the doctors treating the patient should be the appropriate “target.” Just as not every medical doctor can treat every disease (despite having a so-called unlimited medical license), in practicality our legal system prevents that from happening.
The same may be true with hospitals. Ebola is a national security emergency. While it is not extremely “easy” to contract the disease, it is so dangerous that it might as well be, for all intents and purposes. There is a clear and present danger to all hospital personnel dealing with primary care of known infected patients.
The hospital can make a reasonable point by counter-suing the patient’s family for fraudulent non-disclosure. They undoubtedly knew he was sick and had been from Africa. Most of the time counter-suits are a waste of lawyer assets. But in this case it could have a “chilling” effect on a potential lawsuit against the hospital. He openly lied to his caregivers.
The other aspect of this is appropriate CDC management of a national security emergency, the adequacy of which has been clearly lacking in tenor and spirit, much less in practical terms. Government has dropped the ball so badly that it is bouncing wildly in an open field, with nobody willing to even try to catch it. It might as well be an unprotected glowing ball of radio-active cesium, which caused several horrible deaths once in Mexico years ago.
President Obama chose a lawyer without any healthcare experience to be his so-called Ebola Czar. The only qualifications this man has is a pleasant smile and a degree from a law school in political correctness. The other qualification he has is as a pre-designated fall-guy.
The family should sue the Government, not the hospital or the doctors. While I agree that this is unlikely, the hospital attorneys should be making the point that this is not just a malpractice suit. It is over a national security emergency. People are loath to sue the Government, but it certainly has deep pockets. At the very least, the family could be advised to list the CDC as a culpable party in the lawsuit and let it fall where it may.
I don’t think the hospital should openly settle. Instead, it should fight using the argument of “Government incompetence.” There will be plenty of ‘believers” of that on any jury, should it ever get that far.
Michael M. Rosenblatt, DPM
Much of the TX Ebola story is Monday quarterbacking. Exact details of Mr Duncan story have not been disclosed. What is known and evident is blissful ignorance and incompetence of CDC (guess what – yet again). Also clear is the fact that none (zelch, nada) of healthcare wokers under umbrella “Doctors without Borders” acquired Ebola while treating patients in remotest locales of Africa in last 30 years. They do not advertise this record, they go on helping the sick. Compare that to the CDC pomposity, blunders, statements and record. It is true CDC is not FBI but it has a team of Ebola scientists who still operate on 1976 premises and advise the nation…an intern would likely be more succinct. As for the lawsuits in TX – pure and free Cinnabons for lawyers. After all is said and done, i wonder on the fate of Dallas Presbyterian CEO, CMO, ID control chief and the ED doctor.
When the clerk at Texas Health Presbyterian Hospital entered a negative wallet-biopsy into the EHR, Duncan may have been treated differently compared to a patient with insurance. This may or may not be true or provable, but gomers will always be gomers.
I may be wrong, but didn’t Duncan admit to Ebola exposure in West Africa before he died? Wasn’t it determined that he “lied” on immigration forms? If he withheld this vital information during his first ER visit, then he is responsible for his own demise. If he told staff at Texas Health Presbyterian Hospital that he had contact, discharge would be malpractice.
Unfortunately, all of the cases of Ebola in the US have been shrouded in secrecy in all ways except for personal photographs of the victims. In that regard, it is impossible to judge whether standard of care was breached – and the EHR will be illegible.
If I were one of the poor workers that seroconverted after caring for Duncan, I believe I would know exactly what went wrong. To help others, I would share the experience with the world to help prevent further iatrogenic transmission, and to relieve anxiety of the public.
🙂
That society, with healthcare at its crest, has devolved to this state is simply crushing to the spirit. Every single healthcare interaction is, in the eyes of plaintiff’s attorneys, simply an opportunity to stalk, gather, and spy for potential liability.
It may be unnecessary to state, but nonetheless cathartic to do so, that the vast majority (?99.99%) of all healthcare providers are in the business of “trying to help” ALL THE TIME. To be scrutinized constantly in a way such that we are each one innocent error away from a confrontation that threatens one’s professional career, personal assets, and public image forever, erodes one’s ability to HELP, and one’s ability to maintain his/her optimism that I, for one, need to care effectively for patients.
Those who know me know whereof I speak. The agendas of the media and the plaintiff’s lobbies have overrun us. There is, from a practical standpoint, no risk to the press, the attorney, or the plaintiff from filing suit, publicizing it, and extorting money.
I had a patient upon whom I operated for an emergent condition several years ago. This patient did very well overall with few residual problems. In a vignette that is difficult to believe, I can relate that the patient slipped and fell on ice perhaps a year or two after the initial surgery. The patient was (mildly) injured anew in the fall, and while lying on the ground in pain, the first telephone call was not to family, nor to hospital, nor even to 911…it was to her attorney. Nothing came of this, and I was not a target, but it chilled me (no pun, given the ice!) to consider the mindest of such a person.
I feel very deeply for the Texas hospital. A mistake may have been made. A simple one. A regrettable one. But given the situation, was it worth this kind of vilification? Had the ED visit arisen from a straightforward complaint such as crushing chest pain, fever with productive sputum, paralysis, etc, etc, etc, I have no doubt this competent hospital would have taken appropriate steps. I understand the travel to Africa was a red flag, but I agree that the likelihood of this patient’s having Ebola upon the visit to this hospital was remote.
We have acquired much or most of our arsenal of medical knowledge via past mistakes. I feel very strongly that, while we must attempt prospectively to limit mistakes, innocent errors are not necessarily always worthy of such spectacular blame and retribution.
Sounds like Kathy has some resentment against Plastic surgeons! I do however agree with Eric Nuveem
Some thoughts about those haz-mat suits: unnecessary and cumbersome, not to mention spooky and Darthish. Can anyone do a procedure, like start an Aline or central line donning that garb? I cannot imagine performing an ENT exam.
Here’s what’s available in all hospitals and is likely sufficient for Ebola protection: surgical gown, double-gloves, with inner glove coated with betadyne, a surgical mask, eye protection, a cap that covers ears and neck, and booties. This is standard protection while operating on HIV+ folks. Infectious bodily secretions are everywhere during these cases, and surgeons and OR nurses rarely, if ever, contract the disease.
Ari, thank you – you nailed it!
I believe that the real problem in many lawsuits is that in medicine, we are victims of our own success. Thus, when a “miracle” cure occurs with some patients, those whose loved one did not also receive the miracle cure can go looking for someone to blame, because they feel cheated.
Everyone would do well to remember that miracles are called miracles for a reason….they are outside of the realm of the expected.
With Ebola, the first three patients who got to the USA in time and were treated in special units were cured, despite that high case fatality rate with Ebola that approaches 70% or so. The survival of the first three pateints treated in the USA for Ebola may have been an example of a miracle.
While I feel badly for Mr. Duncan and his family, the fact remains that Ebola is a viral disese, no research-tested cure exists, and the mainstay of care of many viral diseases remains supportive care, once symptoms appear to justify the need for that care. From news media reports, those symptoms had not yet appeared at the time of Mr. Duncan’s first hosptial visit.
It seems that personnel at Dallas Pres may have erred in not admitting Mr Duncan at his first visit, not so much because Mr Duncan already needed extensive supportive care, but because his recent return from a West African nation where Ebola was problematic, when he had a fever, would suggest isolating him from others, to decrease the chance of an epidemic.
ER Doc in KS is yet again correct: When did they know and what did they know?
These are the questions that need to be answered before any compensable error can be determined.
Any patient arriving from a 3rd or 4th World country is suspect for a various group of “unexpected” infectious bacterial and viral diseases. That is why they call them “3rd and 4th World countries.”
Sanitation is often completely inadequate. Compressed population groups inhabit filthy communal areas. Every traveling Western doctor and healthcare worker who attends these areas to treat patients understands their “new risk pattern.” They do it because they feel it is the right thing to do, and take that risk.
Every ER doc also understands the constellation of additional risks for 3rd and 4th World exposure. It is not clear if that Texas hospital physician, or group of doctors knew of that exposure.
Even if they did, there is no guarantee he would have survived an earlier hospitalization. But that at least might have prevented additional exposures among previously non-infected people. That is a real concern.
This is an outstanding reason why travel to and from infected African areas should not be permitted, at least in USA jurisdictions.
Texas Health Presbyterian Hospital will have to answer theses questions: When did they know and what did they know?
Michael M. Rosenblatt, DPM