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.