Ebola is making a comeback in Africa. Fortunately, the World Health Organization is on top of it. Further, vaccines are being distributed. Hopefully these vaccines will prove safe and efficacious.
Which brings me to Coming Attractions Bride and Formal in Ohio.
“Coming Attractions” went out of business. They sued a Texas Hospital for their economic misfortune.
During an earlier Ebola crisis, this one in the US, a nurse at a Texas Health Resources hospital visited Ohio and tried on wedding dresses at Coming Attractions. This nurse had treated a patient infected with Ebola. The nurse contracted the disease. Note: the nurse tried on the wedding dress during the incubation period. She was not overtly infected while she sized up the dresses.
After the patient’s death, the Hospital assured its nurses they were not at risk for contracting Ebola and “they were free to intermingle with family, friends, and the public at large, despite the nurses’ exposure to the dangerously contagious disease.”
Once this nurse was actually diagnosed with Ebola, Ohio health authorities insisted the store close for disinfection and cleaning.
Fair enough.
When the store re-opened. It was “unable to dispel the perceived Ebola risk and stigma.” The store closed permanently.
Coming Attractions sued the hospital. It alleged the hospital “failed to heed the warnings from the CDC and other health authorities regarding the imminent threat of an Ebola outbreak in the United States and did not provide its nurses with the necessary training, instruction, and protective equipment to prevent the spread of the disease.”
The Hospital moved to dismiss the case arguing Coming Attractions did not provide an expert report to substantiate the claim. The trial court denied the motion. It was appealed.
The appellate court sided with the Hospital.
It held the claim was a health care liability claim and an expert report was required. Coming Attractions’ allegations were “directly related to the provision of health care” and “directly implicate [the Hospital’s] duties as a health care provider.” The safety duties [the Hospital] allegedly violated are not “the types of duties that arise in an ordinary negligence case.”
This case did not conclude that the Hospital was not negligent in its provision of healthcare services. Only that for the case to proceed, Coming Attractions needed to provide an expert report showing how the Hospital deviated from its standard of care.
This case was dismissed with prejudice. Meaning, it’s over.
The case has been sent back to the lower court to determine the Hospital’s reasonable and necessary attorney’s fees and costs.
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Seems that there’s a simple remedy: file another suit, this time with an expert.
If the hospital represented that it had retained expertise in infections disease, and they failed to provide real expertise, how can they not be liable for incident damages? If the reason the suit failed was that the plaintiff’s attorney didn’t retain an expert, then it seems straightforward that there is cause for suit against the attorney for legal malpractice. There’s no question about damages, only who gets the pie in the face.
Or am I missing something?
I think the plaintiff has enough cause to sue their own attorney for legal malpractice. Certainly a health care related allegation that seeks to establish a fall below the standard of care either by advice or intervention requires an expert witness.
The Ohio health department’s action is also questionable in quarantining a business instead of persons that might transmit the disease, not wedding gowns. They may then aledge slander in that case. Overall the attorney dropped the ball on this one
1) The hospital may have been negligent in letting the nurses travel and telling them that they were safe to do so. The nurse who contracted Ebola may have a case against the hospital. However the nurse was then the infectious agent that came into the store, not the hospital. Suing the hospital for this case seems like a stretch legally on a number of grounds.
2) Whether the hospital responded appropriately or not is another issue. But there have to be legal grounds to bring a suit in the first place and it doesn’t seem convincing that the store had such grounds.
3)It was the state of OH that ordered the store closed and disinfected. Assuming that this was necessary and protective for the health of the public, the store would have no grounds to sue the state of OH. Ohio was guarding the public health. If it could be shown that there was no public health risk of the gowns being contaminated and being able to transmit the virus then maybe the store would have a case against OH if it could prove that they were rash or overly cautious.
4) The store itself had to know what panic the public had about Ebola. they could have abandoned that location, had their staff cleared, moved to a new location, and written off their stock of wedding dresses at the old location after disinfection. It is unclear that they did anything to mitigate those situations, and they did not engage a PR firm that deals with the aftermath of PR disasters. they should have as it could have saved their business.
5) As far as the store suing their own attorney for malpractice and legal fees, well, they could. The attorney was stupid having not established a clear legal causation for action or the liability of the hospital as it related to the store. The store might have had a more viable case if they went after the nurse legally. But she did not act in bad faith. And so far as I am aware it is still not illegal to pass along a communicable disease unwittingly. It is illegal to knowingly pass along a communicable disease in certain circumstances.
This is a FAR stretch, the hospitals fault?!
Wait a minute, as I recall, the nurse herself had the issue. She traveled from Texas despite having the interval development of fever. That was the violation of CDC recommendations! The entire flight was exposed. There was a group of four or so NPs from Cleveland Clinic were not permitted to work for a period of days after due to her. And, then she went out on the shopping trip …