In a land of lawsuits, this case seems made for litigation: A doctor appears to miss a red flag, an Ebola diagnosis is delayed, and a patient dies. But this is Texas.
It may not matter much that Texas Health Presbyterian Hospital Dallas apologized for initially misdiagnosing Thomas Eric Duncan, who was sent home from the ER but later returned sicker and farther along on a painful decline to death. Insulated by Texas tort reform that gives an extra layer of protection to emergency room doctors and nurses, not only is the very feasibility of winning complicated, but the potential payout is severely capped.
"Emergency room health care providers in Texas have virtual immunity," said Steve Laird, a personal injury lawyer in Fort Worth. "The Duncan family's chances of prevailing would be slim to none."
Trial lawyers and health care providers squared off when Proposition 12 went before Texas voters in 2003, with Gov. Rick Perry cheerleading the constitutional amendment he said was aimed at quelling a loss of doctors and a surge of frivolous lawsuits. Millions were pumped into the most expensive ballot measure campaign in the state's history, and it narrowly passed.
The law puts a $250,000 limit on noneconomic damages related to pain and suffering in almost all cases. Additional economic damages are still possible to recoup lost wages on behalf of a parent, legal or common-law spouse or children. But because Duncan was a chauffeur from a poor, war-torn country who had just arrived in the U.S. and was not working, the hurdles may be higher and the payout lower.
Duncan's sister and nephew say they are considering a lawsuit. Any potential litigation would likely point to the drumbeat of warnings and publicity about Ebola prior to his arrival at Presbyterian as evidence a reasonable person should have known about the threat.
Many states have instituted malpractice caps. But the facility where Duncan was given a diagnosis of sinusitis and sent home happened to be the emergency room, which is especially shielded under Texas law. Instead of simply requiring proof of negligence to win, plaintiffs must demonstrate that any negligence in the ER was "willful and wanton."
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"You have to show that they basically knew what they were doing was going to cause harm," said Brent Walker, a Dallas personal injury lawyer. "It's something a whole lot more than 'Oops, I shouldn't have done that.'"
The state Department of Insurance said Thursday that the number of medical malpractice claims fell by 64 percent between 2003 and 2012, and the average payout dropped by one-third. Walker says his law firm now turns down dozens of medical malpractice cases a month that would have otherwise been considered legally viable.
"The emergency room claims have virtually disappeared," he said. "There have been vanishingly few."
Central to any case over Duncan's death would be what the caregivers knew. In Duncan's first ER visit, a nurse logged the fact that he had recently traveled from Africa, where the largest outbreak of Ebola ever recorded is occurring. But there's no indication in his medical records — which his family provided to The Associated Press — that the treating physician received that information.
Presbyterian said the fact "was not communicated effectively among the care team." A hospital spokesman said changes have been implemented to make sure travel histories are captured upon the patient's arrival in the ER and that the electronic record system better documents and displays the information. The hospital has acknowledged its training on the virus also "had not been fully deployed."
Some attorneys say a lack of ample preparation given the warnings and the initial dismissal of Duncan might be enough to at least convince the hospital to settle.
"What they did may meet the most basic standard of recklessness," said Stewart Weltman, a Chicago attorney who has tried malpractice cases.
Duncan's second visit to Presbyterian ended with his death on Oct. 8. Dozens of medical professionals cared for him, and two of his nurses contracted Ebola. Those women, Nina Pham and Amber Vinson, could also pursue lawsuits, claiming they were not kept safe by their employer.
Vinson's family has hired high-profile attorney Billy Martin, who previously represented NFL player Michael Vick. Walker said any potential lawsuit on behalf of Vinson or Pham would likely have to seek a payout through the state worker's compensation system. But if the women fully recover and eventually are able to return to normal lives, he said, any settlement likely would be limited.
