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Looking for Deep Pockets

06/04/18 12:16 PM

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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Posted by Medical Justice | in Legal | 4 Comments »

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Jane DoeretiredOscar HernandezJoe Horton Recent comment authors
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Joe Horton
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Joe Horton

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?

Oscar Hernandez
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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

retired
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retired

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… Read more »

Jane Doe
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Jane Doe

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 …